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8.  Shipman  on  Common-Law  Pleading.    (2d  EdJ 
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21.  Shipman  on  Equity  Pleading. 

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81.  Childs  on  Suretyship  and  Guaranty. 

82.  Costigan  on  American  Mining  Law. 

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Published  and  for  sale  by 
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C58554 


HANDBOOK 


ON 


AMERICAN  MINING  LAW 


BY  GEO.  P.  COSTIGAN,  JR. 

l| 

DEAN  OF  THE  COLLEGE  OF  LAW  OF  THE  UNIVERSITY  OF  NEBRASKA 


ST.  PAUL,  MINN. 

WEST  PUBLISHING  CO. 

1908 


COPYRIGHT,    1908, 

BY 
WEST    PUBLISHING    COMPANY. 


(Cosx.MiN.L.) 


PREFACE. 


THE  author,  who  has  lived  in  mining  camps,  has  practiced  law  in  the 
mining  law  states  of  Colorado  and  Utah,  and  has  supplemented  prac- 
tical experience  with  several  years  of  teaching  mining  law,  hopes  that 
this  book  will  prove  a  help  to  practicing  lawyers,  as  well  as  to  law 
'students.  He  acknowledges  his  indebtedness  to  the  many  meritorious 
works  on  the  subject  of  American  mining  law,  and  in  particular  to 
the  very  serviceable  "Morrison's  Mining  Rights"  of  Messrs.  Morri- 
son and  De  Soto,  and  the  excellent  two-volume  treatise  on  Mines  by 
Mr.  Lindley.  No  book  on  American  mining  law  yet  written,  however, 
meets  the  joint  need  of  student  and  of  practitioner  which  this  Horn- 
book seeks  to  satisfy. 

The  title  American  Mining  Law  has  been  chosen  because  of  its 
simplicity  and  because  the  law  chiefly  dealt  with,  while  it  affects  only 
a  comparatively  small  part  of  the  United  States  and  its  possessions, 
is  so  national  in  its  character  as  deservedly  to  be  spoken  of  by  all 
writers  on  the  subject  as  American  Mining  Law. 

In  the  notes  the  cases  which  for  one  reason  or  another  are  sug- 
gested as  best  for  students  to  consult  are  printed  in  large  type.  As  is 
true  of  other  Hornbooks,  an  exhaustive  citation  of  cases  has  not  been 
attempted,  but  the  endeavor  has  been  to  give  a  comprehensive,  well 
proportioned,  and  up-to-date  treatment  of  the  subject. 

Because,  within  a  few  months  after  a  book  on  mining  law  is  pub- 
lished, state  or  federal  legislation  or  land  department  regulations  may 
render  obsolete  various  forms  suggested  in  such  a  book,  no  attempt 
is  made  herein  to  offer  forms  for  the  practitioner.  The  last  edition 
of  Morrison's  Mining  Rights,  a  book  which  has  rapidly  succeeding 
revised  editions,  should  be  consulted  for  the  latest  and  best  forms. 
In  the  text  of  the  present  book  only  such  forms  are  printed  as  eluci- 
date particular  points,  while  in  one  of  the  appendices,  for  the  pur- 
pose of  assisting  students  to  understand  the  various  steps  in  patent 
proceedings,  certain  of  the  forms  for  patent  proceedings  contained  in 
the  13th  edition  of  Morrison's  Mining  Rights  are  inserted  by  the 
generous  permission  of  Messrs.  Morrison  and  De  Soto.  Another  of 
the  appendices  contains  also  forms  of  leases  prescribed  by  the  United 
States  for  the  leasing  of  certain  Indian  lands. 

In  the  appendices  will  be  found  the  various  federal  statutes  and  de- 
partmental rules  and  regulations  relating  to  mining.  These  include 

(v) 


VI  PREFACE. 

the  United  States  statutes  and  departmental  regulations  governing 
mineral  lands  in  Alaska  and  in  the  Philippines,  as  well  as  those  ap- 
plicable to  such  lands  in  the  mining  law  states.  Except  in  the  case  of 
Texas,  the  statutes  of  which  on  mining  are  of  general  interest,  because 
they  constitute  a  system  of  laws  independent  of  federal  control  or 
interference,  state  statutes  on  mining  matters  are  not  inserted  in  the 
appendices.  Lack  of  space,  if  nothing  else,  would  forbid  such  inser- 
tion; but,  apart  from  that  difficulty,  it  is  believed  that  nothing  of  im- 
portance would  be  gained  by  the  printing  of  such  statutes.  A  basis 
for  the  comparison  of  the  various  important  state  statutory  provisions 
on  matters  covered  by  the  text  is  furnished  at  appropriate  places  in 
the  text  itself,  and,  for  the  rest,  no  mining  law  book  can  relieve  the 
practicing  lawyer  from  the  necessity  of  consulting  the  mining  law 
sections  of  the  statute  books  of  his  own  state. 

The  author  wishes  to  express  his  thanks  to  one  and  all  who  have 
contributed  information  or  suggestions  for  this  book. 

GEO.  P.  COSTIGAN,  JR. 

Lincoln,  Neb.,  Sept  1,  190& 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

THE  ORIGIN  AND  HISTORY  OF  AMERICAN  MINING  LAW. 

Section  Page 

1.  Definition  of  American  Mining  Law 1-2 

2.  The  Origin  of  American  Mining  Law 2-8 

3.  The  Federal  Mining  Statutes 8-21 

4.  Supplemental   State  Legislation 21-23 

5.  Supplemental  District  Rules,  Regulations,  and  Customs....  23-29 

6.  The  Attitude  of  the  Courts  Toward  the  Miner 29-30 


CHAPTER  II. 

THE  MINING  LAW  STATUS  OF  THE  STATES,  TERRITORIES,  AND  POS- 
SESSIONS   OF    THE    UNITED    STATES. 

7.  The  Mining  Law  States  and  Territories 31 

8.  The  Mineral  Land  History  of  the  United  States 31-34 

9.  The  Mining  Law  Status  of  the  Several  States  and  Territories    34-47 


CHAPTER  III. 

THE  LAND  DEPARTMENT  AND  THE  PUBLIC  SURVEYS. 

10.  The  Land  Department 48-50 

11.  The  Attitude  of  the  Courts  Toward  the  Land  Department. . .  51-54 

12.  The  System  of  Public  Land  Surveys 54-57 

13.  The  Location  of  District  Land  Offices 58 

CHAPTER  IV. 

THE  RELATION  BETWEEN  MINERAL  LANDS  AND  THE  PUBLIC  LAND 

GRANTS. 

14-15.     Mexican  Land  Grants 59-64 

16-17.     State  School  Land  Grants 64-71 

18-19.     Railroad  Land  Grants 71-82 

COST.MIN.L.  (vii) 


Vlll  TABLE   OF    CONTENTS. 


CHAPTER  V. 

THE  RELATION  BETWEEN  MINERAL  LANDS  AND  HOMESTEAD, 

TIMBER,  AND  DESERT  ENTRIES. 

Section  Page 

20.  Homestead  Entries 83-87 

21.  Timber  and  Stone  Land  Entries 87-88 

22.  Desert   Entries..                                                    88 


CHAPTER  VI. 

THE  RELATION  BETWEEN  MINERAL  LANDS  AND  THE  VARIOUS  PUB- 
LIC LAND  RESERVATIONS. 

23.  Indian  Reservations 89-91 

24.  Military    Reservations 91-92 

25.  .National    Parks 92 

26.  Forest    Reserves 92-93 

27.  Reservoir    Sites..                                         94 


CHAPTER  VII. 
THE  RELATION  BETWEEN   MINERAL  LANDS   AND   TOWNSITES. 

28.  Lands  Subject  to  Townsite  Entry 9(3-100 

29.  The  Location  of  Known  Veins  in  Townsites 101-102 

CHAPTER  VIII. 
DEFINITIONS  OF  PRACTICAL  MINING  TERMS. 

30.  Lode  Mining  Terms 103-108 

(a)  Terms  Relating  to  the  Working  of  a  Lode  Claim 103-105 

(b)  Terms  Relating  to  the  Vein  or  Lode 105-107 

(c)  Terms  Relating  to  the  Ore  and  Its  Treatment 107-108 

31.  Placer  Mining  Terms 108-110 

CHAPTER  IX. 
DEFINITIONS  OF  MINING  LAW  TERMS. 

32.  Definition  of  "valuable  mineral  deposits." 111-121 

33.  Definition  of  "vein"  or  "lode." 122-135 

f34.  Definition  of  "placer." 135-137 

35.  Definition  of  "apex"  of  veins 137-140 

36.  Definition  of  "course"  or  "strike"  of  veins 140 

37.  Definition  of  "dip"  of  veins 140-141 

38.  Definition  of  "mining  claim"  or  "location." 142-143 

39.  Definition  of  "mine." '. 143-14<> 


TABLE   OF    CONTENTS.  IX 


CHAPTER  X. 

THE  DISCOVERY  OF  LODE  AND  PLACER  CLAIMS. 

Section  Page 

40-43.     The  Discovery  of  Lode  Claims 147-155 

44.  Pedis    Possessio 155-159 

45.  The  Relation  Between  Discovery  and  Location 159-161 

46.  The  Discovery  of  Placer  Claims 162-166 


CHAPTER  XI. 

WHO  MAY  AND  WHO  MAY  NOT  LOCATE  MINING  CLAIMS. 

47.  Aliens 167-170 

48.  Land    Office    Employes 170-171 

49.  Corporations 171-173 

50.  Minors 173 

51.  Agents 173-174 


CHAPTER  XII. 

THE  LOCATION  OF  LODE  CLAIMS. 

52.  Definition   of   Location 175-176 

53.  The  Discovery  or  Prospector's  Notice 17U  -178 

54.  The  Discovery  Shaft  or  its  Equivalent .178-184 

55.  Marking  the  Location  upon  the  Ground 184-196 

55a.  Excessive    Locations 196-204 

55b.  Changing  Boundaries 204-205 

56.  Posting  of  Notices  of  Location 205-211 

57.  Recording  213-220 

57a.  Amendments  of  Record 221-223 

57b.  Adding  and  Dropping  Names  of  Locators 223-224 


CHAPTER  XIII. 
THE  LOCATION  OF  MILL  SITES. 

58.  The  Two  Kinds  of  Mill  Sites 225-226 

59.  Mill  Sites  Located  by  the  Proprietor  of  a  Vein  or  Lode 226-229 

59a.  Use  Necessary  to  Hold  Such  Mill  Sites 228  229 

60.  Mill  Sites  Claimed  by  Mills 229-230 

61.  The  Acts  of  Location  of  Mill  Sites. .  .  .230-231 


TABLE   OF    CONTENTS. 


CHAPTER  XIV. 

THE  LOCATION  OF  TUNNEL  SITES  AND  OF  BLIND  LODES  CUT  BY 

TUNNELS. 
Section  Page 

62.  The  Location  of  Tunnel   Sites 232-236 

63.  The  Nature  of  Tunnel  Sites 236-237 

64.  Dumping  Ground  for  Tunnel  Sites 238-239 

65,  66.     The  Location  of  Blind  Veins 239-242 

67.  Rights  of  Way  through  Prior  Claims 243-244 

68.  Tunnels  and  Annual  Labor. .  244 


CHAPTER   XV. 

THE  LOCATION  OF  PLACERS  AND  OF  LODES  WITHIN  PLACERS. 

69.  The  Location  of  Placers '. 245-247 

70.  The  Discovery  Notice 247-248 

71.  The  Discovery  Work 248-249 

72.  The  Marking  of  the  Location  on  the  Ground 249-258 

73.  The  Posting  of  the  Location  Notice 258-259 

74.  Record  259-260 

75-77.  Lodes   Within   Placers 260-269 


CHAPTER  XVI. 

THE  ANNUAL  LABOR  OR  IMPROVEMENTS  REQUIREMENTS. 

78.  Claims  Subject  to  Annual  Labor  Requirement 270-271 

79.  What  is  Annual  Labor 271-274 

80-81.     Place  of  Performance  and  Kind  of  Annual  Labor 275-282 

82.  Amount  of  Annual  Labor 282-283 

83.  Excuses  for  Annual  Labor 283-284 

84.  Proof  of  Annual  Labor 284-286 

85.  Annual  Labor  Pending  Patent  Proceedings 286-287 

86-88.     Resumption  of  Work 288-292 

89-90.    Forfeiture    to    Co-owner..  ..293-299 


CHAPTER  XVII. 

THE    ABANDONMENT,    FORFEITURE,    AND    RELOCATION    OF    LODE 
AND  PLACER  MINING  CLAIMS. 

91-92.    The  Distinction  between  Abandonment  and  Forfeiture 300-307 

93.    The  Burden  of  Proof-  in  Cases  of  Abandonment  and  of  For- 
feiture   .  ..307-309 


TABLE   OF    CONTENTS.  XI 

Section  Page 

94.  The  Kinds  of  Relocation 309-310 

95.  Relocations  by  Third  Persons 310-327 

95a.  Resumptions  of  Work 317-320 

95b.  Premature    Relocations 321-327 

96.  Relocations  by  the  Forfeiting  Owners 327-341 

96a.  Relocations  by  Amendment 335-341 

97.  The  Forfeiture  of  Improvements 341-342 


CHAPTER  XVIII. 

UNCONTBSTED  APPLICATION  TO  PATENT   MINING  CLAIMS. 

98.  The  Five  Hundred  Dollars  Expenditure 343-344 

99.  The  Patenting  of  Lode  Claims 345-359 

99a.  The  Survey  Requirements 345-349 

99b.  The  First  Set  of  Application  Papers 349-357 

99c.  The  Final   Set  of  Application  Papers 357 

99d.  Entry  and  Patent 357-350 

100.  The  Patenting  of  Mill  Sites 360-301 

101.  The  Patenting  of  Placer  Claims 361-364 

lOla.  Known  Lodes  Within  Placers 363-364 

102.  Conflicts  of  Lodes  and  Placers  with  Older  Locations 364-365 


CHAPTER  XIX. 

ADVERSE  PROCEEDINGS  AND  PROTESTS  AGAINST  PATENT  APPLI- 
CATIONS. 

103.  Adverse   Claims 366-373 

104.  Court  Proceedings  on  Adverse  Claims 374-383 

105.  The  Relation  of  the  Land  Department  to  the  Court  Proceed- 

ings on  Adverse  Claims 383-385 

106.  Protests  .  386-391 


CHAPTER  XX. 

PATENTS. 

107.  Nature  of  a  Patent 392-394 

108.  Advantages  of  Patent 395-398 

109.  Effect  of  Patent  of  Placer  on  Known  Lodes  in  the  Placer. .         399 

110.  Direct  Attacks  on  Patents 399-400 

111.  Patentees  as  Trustees 400-401 

112.  The  Doctrine  of  Relation .  .401-402 


Xll 


TABLE   OF    CONTENTS. 


CHAPTER  XXI. 


SUBSURFACE  RIGHTS. 
Section  Page 

113.  Presumption  as  to  Subsurface  Rights 404-409 

114.  Extralateral  Rights  Dependent  on  the  Vein  Apexiug  in  the 

Mining  Location 409-410 

115.  Extralateral  Rights  Dependent  on  the  Identity,  Continuity, 

and  Dip  of  the  Vein 410-414 

.  116.     Extralateral   Rights  and  the  Right   to   Cross   Cut   through 

Another's    Land 415 

117.  Extralateral  Rights  under  the  Act  of  1866 415-417 

118.  Extralateral  Rights  under  the  Act  of  1872 417-452 

llSa.  Parallelism  of   End   Lines 418-422 

118b.  Side  Lines  as  End  Lines 422-425 

.  118c.  Vein  Crossing  One  End  Line  and  One  Side  Line 426 

118d.             Vein  Crossing  One  End  Line,  but  Stopping  before  Anoth- 
er Boundary  Line  is  Reached 427-428 

USe.         '    Vein  Not  Reaching  Any  Boundary  Line 428-429 

118f  Vein   Crossing  Two   Opposite  Parallel   Boundary  Lines, 

but  in  Its  Course  Going  out  of  and  Returning  through 

Another   Boundary   Line 429-432 

HSg.            Vein  Entering  and  Departing  through  Only  One  Bound- 
ary Line 433^34 

USh.  Vein  Covered   by  Conflicting   Surface  Locations   Which 

have    Diverse    Extralateral    Right    Planes — "Judicial 

Apex." 434-436 

HSi.  Broad  Vein  Bisected  on  Its  strike  by  the  Common  Side 

Line  of  Two  Locations 437-438 

118j.  Vein  Splitting  on  Its  Strike 439 

118k.  Secondary  or  Incidental  Veins 440-449 

1181.  Vein  Dipping  under  Prior  Patented  Land 449-450 

118m.  "Theoretical    Apex." 450-451 

118n.  Rights  of  Grantor  and  Grantee  after  a  Grant  of  Part  of 

a  Located  Apex 451-452 

119.  Cross  Veins 453-455 

120.  Crossing  of  Extralateral  Rights  on  the  Dip  of  the  Same  Vein        456 
121-122.     Veins  Uniting  on  the  Dip  and  on  the  Strike 457 

123.  Extralateral  Right  Compromise  Agreements  and  Deeds....         458 

124.  Diagram  to  Illustrate  Relative  Extralateral  Rights 459-461 

CHAPTER  XXII. 
COAL  LAND  AND  TIMBER  AND  STONE  LAND  ENTRIES  AND  PATENTS. 

125.  Coal  Land  Entries 462-467 

I25a.  Ordinary  Cash  Entry 463-465 

125b.  Cash  Entry  under  a  Preference  Right 465-466 

125c.  Indian  Coal  Land  .Leases 467 

1 26.  Timber  and  Stone  Land  Entries 467-469 


TABLE    OF   CONTENTS.  • 


CHAPTER  XXIII. 

OIL  AND  GAS  LEASES. 
Section  Page 

127.  Kinds  of  Oil  and  Gas  Leases 470-477 

128.  Ordinary  Obligations  of  Lessors  and  Lessees 478-480 


CHAPTER  XXIV. 

OTHER  MINING  CONTRACTS  AND  LEASES. 

129.  Prospecting   or   Grub-Staking   Contracts 481-483 

130.  Mining    Licenses    and    Leases 484-486 

131-132.     Leases  and   Options  and  Title  Bonds 487-488 

133.  Working    Contracts 488 

134.  Ore    Contracts..  489 


CHAPTER  XXV. 
MINING  PARTNERSHIPS  AND  TENANCIES  IN  COMMON. 

135.  Mining    Partnerships 490-493 

135a.  Differences  between  Mining  Partnerships  and  Ordinary 

Partnerships    491-493 

136.  *  Tenancies  in  Common  of  Mining  Property 493-496 

136a.  Accounting  between    Co-tenants 494-495 

136b.  Fiduciary  Relationship  of  Co-tenants 496 

136c.  Relations  between  Surface  and  Subsurface  Owners....         496 


CHAPTER  XXVI. 
CONVEYANCES  AND  LIENS. 

137.  Necessity  of  Written  Conveyances  of  Mining  Claims 497-499 

138.  Quitclaim   and   Warranty   Deeds 499-502 

138a.  The  Special  "Dips,  Spurs,"  etc.,  Clause 500 

138b.  After-Acquired    Title 501-502 

139.  Easements  on  Severance 502-508 

140.  Mortgages 509 

141.  Other  Liens 509-510 

142.  Examinations  of  Title..  ..510-511 


TABLE   OF   CONTENTS. 


CHAPTER  XXVII. 

MINING  REMEDIES. 
Section  Page 

143.  Ejectment  Actions  and  Suits  to  Quiet  Title « 512 

144.  Trespass    513-516 

144a.  The  Measure  of  Damages 513-516 

145.  Trover    and   Replevin 516-517 

146.  Injunctions    517-518 

147.  Accounting 519 

148.  Inspection    and    Survey 519-520 

149.  Receiverships    520 

150.  Partition    521-522 

151.  Condemnation  Proceedings— Eminent  Domain 522-523 

152.  Personal  Injury  Actions 523 

153.  Adverse  Possession — Statutes  of  Limitation 523-525 


CHAPTER  XXVIII. 
WATER  RIGHTS  AND  DRAINAGE. 

154-155.    The  Appropriation  of  Water  Doctrine 526-530 

156-157.    Pollution  of  Water— Debris 531-534 

158.  Drainage    534-535 

APPENDICES. 
(Pages  537-690.) 

I 


HANDBOOK 


ON 


AMERICAN  MINING  LAW 


CHAPTER  I. 
THE  ORIGIN  AND  HISTORY  OF  AMERICAN  MINING 

1.  Definition  of  American  Mining  Law. 

2.  The  Origin  of  American  Mining  Law. 

3.  The  Federal  Mining  Statutes. 

4.  Supplemental  State  Legislation. 

5.  Supplemental  District  Rules,  Regulations,  and  Customs. 

6.  The  Attitude  of  the  Courts  Toward  the  Miner. 

DEFINITION  OF  AMERICAN  MINING  LAW. 

1.  American  mining  law  consists  of  (1)  federal  legislation;  (2)  supple- 
mental state  legislation;  and  (3)  local  mining  rules,  regula- 
lations,  and  customs.  All  these,  judicially  expounded  and  ap- 
plied, constitute  the  law  applicable  to  that  part  of  the  public 
mineral  domain  of  the  United  States  which  has  been  disposed 
of,  and  to  that  part  which  is  to  be  disposed  of,  under  the  fed- 
eral mining  act  of  1866  and  the  subsequent  federal  mining 
acts. 

American  mining  law  consists  of  mining  customs  and  legislation  in- 
terpreted by  court  decisions  in  the  light  of  the  history  of  mining  in 
America.  It  is  found  primarily  in  congressional  legislation  and  in 
United  States  Supreme  Court  decisions;  but  these  are  supplemented 
by  the  decisions  of  the  lower  federal  courts  and  of  the  state  courts,  by 
such  state  enactments  as  are  authorized  by  and  are  consistent  with  the 
acts  of  Congress,  and  by  such  district  mining  rules,  regulations,  and 
customs  as  are  consistent  both  with  the  state  laws  and  with  the  con- 
gressional legislation.  American  mining  law  is  the  law  applicable  to 

OOST.MIN.L.— 1 


AND    HISTORY   OF   AMERICAN    MINING   LAW.  (Cil.  1 

what  remains  of  the  public  mineral  domain  of  the  United  States  and 
to  those  parcels  of  mineral  lands  which  have  been  disposed  of  under 
the  federal  mining  acts  to  individuals,  but  to  which  for  certain  pur- 
poses, such  as  to  govern  extralateral  rights,  the  mining  laws  still  ap- 
ply. American  mining  law  relates,  therefore,  to  those  parts  of  what 
are  now  or  have  been  the  public  mineral  lands  of  the  United  States,  to 
which  the  federal  mining  statutes  have  applied,  and  to  which,  even 
after  patent  .and  for  some  purposes,  they  still  apply. 

THE  ORIGIN  OF  AMERICAN  MINING  LAW. 

2.  American  mining  law  began  with  the  discovery  of  gold  in  Califor- 
nia, and  its  first  phase  was  that  of  rules,  regulations,  aiadi 
customs  adopted  and  enforced  by  the  miners  in  the  various 
mining  districts  created  by  them.  These  rules,  regulations, 
and  customs  governed  the  location  and  retention  of  mining 
claims1.  They  originated  in  necessity,  have  received  federal 
as  well  as  state  approval,  and  have  been  called  the  American 
common  law  of  mining. 

It  was  through  the  discovery  of  gold  in  California  in  1848  that 
American  mining  law  came  into  existence.1  The  discovery  of  gold  on 
the  public  land  of  the  United  States  in  the  then  comparatively  inacces- 
sible region  of  California,  and  the  consequent  rapid  influx  there  of 
thousands  of  miners  and  adventurers,  created  in  an  astonishingly  short 
space  of  time  unique  conditions,  which  demanded  and  received  a  legal 
solution  just  as  unusual.  The  inrushing  treasure  seekers  found  a  land 
belonging  to  the  United  States  and  under  military  government,  and 
they  proceeded  to  enter  in  and  possess  it,  although  there  was  no  prece- 
dent for  such  action,  and  although  the  English  common-law  theory  of 
sovereign  mining  rights  was  distinctly  against  it.  On  February  12, 
1848,  the  Mexican  laws  relating  to  mining  were  declared  by  Colonel 
Mason,  the  military  governor  of  California,  to  be  of  no  force  and  ef- 
fect,2 and  the  population  of  the  gold  fields  thereupon  proceeded  to 

1  "Commodore  Sloat  raised  the  American  flag  at  Monterey  July  7,   1846. 
Marshall  discovered  gold  at  Coloma  [Cal.]  in  January,  1848.     The  treaty  of 
Guadalupe-Hidalgo  was  concluded  February  2,  exchanged  May  30,  and  pro- 
claimed July  4,  1848.     This  treaty  added  to  the  national  domain  an  area  of 
more  than  half  a  million  square  miles,  embracing  the  states  of  California, 
Nevada,  Utah,  the  territories  of  Arizona  (except  the  Gadsden  Purchase  of 
1853)  and  New  Mexico  west  of  the  Rio  Grande  and  north  of  the  Gadsden 
Purchase,  and  the  state  of  Colorado  west  of  the  Rocky  Mountains,  and  the 
southwestern  part  of  Wyoming."    1  Lindley  on  Mines  (2d  Ed.)  §  40. 

2  His  proclamation  read:    "From  and  after  this  date  the  Mexican  laws  and 
customs  now  prevailing  in  California  relative  to  the  denouncement  of  mines 
are  hereby  abolished."    Yale  on  Mining  Claims  and  Water  Rights,  17.     Com- 
pare Castillero  v.  U.  S.,  2  Black  (U.  S.)  18,  17  L.  Ed.  360. 


§  2)  THE    ORIGIN   OF   AMERICAN   MINING  LAW.  3 

evolve  mining  laws  of  their  own.  The  military  governor  did  not  in- 
terfere, for,  as  he  said,  while  the  entire  gold  fields,  with  the  exception 
of  a  few  Mexican  land  grants,  belonged  to  the  United  States,  and  he 
was  anxious  to  secure  rentals  and  fees  from  those  who  took  the  gold 
therefrom,  still,  "upon  considering  the  large  extent  of  the  country, 
the  character  of  the  people  engaged,  and  the  small,  scattered  force  at 
my  command,  I  am  resolved  not  to  interfere,  but  to  permit  all  to  work 
freely,  unless  broils  and  crimes  should  call  for  interference."  8 

Left  by  the  military  governor  to  "work  freely"  in  a  country  where 
general  law  was  undefined  and  largely  unenforceable,  the  mining  popu- 
lation, under  the  leadership,  seemingly,  of  the  Cornish  miners,  adopted 
a  system  of  miners'  regulations,  enacted  at  meetings  of  the  miners  of 
self-created  mining  districts,  and  also  evolved  customs  which  the  min- 
ers of  the  respective  districts  enforced,  even  though  those  customs 
were  not  embodied  in  the  regulations  adopted  at  the  miners'  meetings. 
The  regulations  voted  at  the  early  miners'  meetings  applied  to  many 
things  beyond  the  legal  jurisdiction  of  such  assemblages.  For  instance, 
they  imposed  banishment  for  Asiatics,  whipping  and  banishment  for 
practicing  lawyers,  and  death  for  horse  or  mule  stealing  and  for  mur- 
der. But  so  far  as  they  prescribed  rules  about  mining  matters  they 
were,  in  general,  legally  valid.4  Trespassers  upon  the  public  domain, 

»  Report  of  August  17,  1848,  contained  in  Donaldson's  Public  Domain,  312- 
317,  at  page  314. 

*  A  good  example  of  the  early  rules  is  found  in  those  of  Jacksonville  mining 
camp,  in  Tuolumne  county,  Cal.  They  are  found  in  Donaldson's  Public  Do- 
main, 317,  318,  and  are  as  follows: 

"Article  I.  The  officers  of  this  district  shall  consist  of  an  alcalde  and  sher- 
iff, to  be  elected  in  the  usual  manner  by  the  people,  and  continue  in  office  at 
the  pleasure  of  the  electors. 

"Art  II.  In  case  of  the  absence  or  disability  of  the  sheriff,  the  alcalde 
shall  have  power  to  appoint  a  deputy. 

"Art.  III.  Civil  causes  may  be  tried  by  the  alcalde,  if  the  parties  desire 
it ;  otherwise,  they  shall  be  tried  by  jury. 

"Art.  IV.  All  criminal  cases  shall  be  tried  by  a  jury  of  eight  American 
citizens,  unless  the  accused  shall  desire  a  jury  of  twelve  persons,  who  shall 
be  regularly  summoned  by  the  sheriff  and  sworn  by  the  alcalde,  and  shall  try 
the  case  according  to  the  evidence. 

"Art.  V.  In  the  administration  of  law,  both  civil  and  criminal,  the  rule 
of  practice  shall  conform  as  near  as  possible  to  that  of  the  United  States; 
but  the  forms  and  customs  of  no  particular  state  shall  be  required  or  adopted. 

"Art.  VI.  Each  individual  locating  a  lot  for  the  purpose  of  mining  shall  be 
entitled  to  twelve  feet  of  ground  in  width,  running  back  to  the  hill  or  moun- 
tain and  forward  to  the  center  of  the  river  or  creek,  or  across  a  gulch  or  raj 
vine  (except  in  cases  hereinafter  provided  for),  lots  commencing  in  all  cases 
at  low-water  mark  and  running  at  right  angles  with  the  stream  where  they  are 
located. 

"Art.' VII.  In  cases  where  lots  are  located  according  to  Art.  VI  and  the 
parties  holding  them  are  prevented  by  the  water  from  working  the  same,  they 


4  OKIGIN   AND   HISTORY   OF   AMERICAN   MINING   LAW.          (Ch.  1 

and  far  from  the  seat  of  government  in  actual  distance  and  in  the 
means  of  communication,  the  swarming  thousands,  suddenly  engaged 
in  mining  in  California,  had  to  create  for  themselves  laws  adapted  to 

may  be  represented  by  a  pick,  shovel,  or  bar  until  in  a  condition  to  be  work- 
ed; but,  should  the  tool  or  tools  aforesaid  be  stolen  or  removed,  it  shall  not 
dispossess  those  who  located  it,  provided  he  or  they  can  prove  that  they  were 
left  as  required ;  and  said  location  shall  not  remain  un worked  longer  than  one 
week,  if  in  condition  to  be  worked;  otherwise,  it  shall  be  considered  as 
abandoned  by  those  who  located  it  (except  in  cases  of  sickness). 

"Art.  VIII.  No  man  or  party  of  men  shall  be  permitted  to  hold  two  loca- 
tions, in  a  condition  to  be  worked  at  the  same  time. 

"Art.  IX.  No  party  shall  be  permitted  to  throw  dirt,  stones,  or  other  ob- 
'structions  upon  located  ground  adjoining  them. 

"Art.  X.  Should  a  company  of  men  desire  to  turn  the  course  of  a  river 
or  stream  for  the  purpose  of  mining,  they  may  do  so  (provided  it  does  not 
interfere  with  those  working  below  them),  and  hold  and  work  all  the  ground 
so  drained ;  but  lots  located  within  said  ground  shall  be  permitted  to  be  work- 
ed by  their  owners,  so  far  as  they  could  have  been  worked  without  the  turning 
of  the  river  or  stream ;  and  this  shall  not  be  construed  to  affect  the  rights  and 
privileges  guaranteed  or  prevent  redress  by  suit  at  law. 

"Art.  XI.  No  person  coming  direct  from  a  foreign  country  shall  be  permit- 
ted to  locate  or  work  any  lot  within  the  jurisdiction  of  this  encampment. 

"Art.  XII.  Any  person  who  shall  steal  a  mule,  or  other  animal  of  draught 
or  burden,  or  shall  enter  a  tent  or  dwelling  and  steal  therefrom  gold  dust, 
money,  provisions,  goods,  or  other  articles  amounting  in  value  to  $100  or  over, 
shall,  on  conviction  thereof,  be  considered  guilty  of  felony,  and  suffer  death 
by  hanging.  Any  aider  or  abettor  therein  shall  be  punished  in  like  manner. 

"Art.  XIII.  Should  any  person  willfully,  maliciously,  and  preineditatedly 
take  the  life  of  another,  on  conviction  of  the  murder,  he  shall  suffer  death  by 
hanging. 

"Art.  XIV.  Any  person  convicted  of  stealing  tools,  clothing,  or  other  ar- 
ticles, of  less  value  than  $100,  shall  be  punished  and  disgraced  by  having  his 
head  and  eyebrows  close-shaved  and  shall  leave  the  encampment  within  24 
hours. 

"Art.  XV.  The  fee  of  the  alcalde  for  issuing  a  writ  or  search  warrant, 
taking  an  attestation,  giving  a  certificate  or  any  other  instrument  of  writing 
shall  be  five  dollars;  for  each  witness  he  may  swear,  two  dollars;  and  one 
ounce  of  gold  dust  for  each  and  every  case  tried  before  him. 

"The  fee  of  the  sheriff  in  each  case  shall  be  one  ounce  of  gold  dust  and  a  like 
sum  for  each  succeeding  day  employed  in  the  same  case.  The  fee  of  the 
jury  shall  be  half  an  ounce  in  each  case. 

"A  witness  shall  be  entitled  to  four  dollars  in  each  case. 

"Art.  XVI.  Whenever  a  criminal  convict  is  unable  to  pay  the  costs  of  the 
case,  the  alcalde,  sheriff,  jurors,  and  witnesses  shall  render  their  services  free 
of  remuneration. 

"Art.  XVII.  In  case  of  the  death  of  a  resident  of  this  encampment  the 
alcalde  shall  take  charge  of  his  effects  and  dispose  of  them  for  the  benefit  of 
his  relatives  or  friends,  unless  the  deceased  shall  otherwise  desire  it. 

"Art.  XVIII.  All  former  acts  and  laws  are  hereby  repealed  and  made  null 
and  void,  except  where  they  conflict  with  claims  guaranteed  under  said  laws. 

"Abner  Pitts,  Jr.,  Secretary. 

"Jacksonville,  January  20,  1850." 


§  2)  THE   ORIGIN   OF   AMERICAN   MINING   LAW.  5 

the  extraordinary  conditions  which  confronted  them,  and  so  well  did 
they  accomplish  their  task  as  to  mining  that  the  rules  and  customs 
adopted  by  the  miners,  first  in  California  and  later  on  in  other  terri- 
tories and  states,  received  the  approval  of  the  courts,  of  the  local  Leg- 
islatures,5 and,  finally,  of  Congress. 

Of  these  miners'  rules  and  regulations,  and  the  relation  which  the 
act  of  Congress  of  1866  bore  to  them,  Mr.  Justice  Field,  in  a  passage 
often  quoted,  said :  "The  discovery  of  gold  in  California  was  follow- 
ed, as  is  well  known,  by  an  immense  immigration  into  the  state,  which 
increased  its  population  within  three  or  four  years  from  a  few  thou- 
sand to  several  hundred  thousand.  The  lands  in  which  the  precious 
metals  were  found  belonged  to  the  United  States,  and  were  unsurvey- 
ed,  and  not  open  by  law  to  occupation  and  settlement.  Little  was 
known  of  them,  further  than  that  they  were  situated  in  the  Sierra  Ne- 
vada Mountains.  Into  these  mountains  the  emigrants  in  vast  numbers 
penetrated,  occupying  the  ravines,  gulches,  and  canons,  and  probing 
the  earth  in  all  directions  for  the  precious  metals.  Wherever  they 
went,  they  carried  with  them  that  love  of  order  and  system  and  of  fair 
de*aling  which  are  the  prominent  characteristics  of  our  people.  In 
every  district  which  they  occupied  they  framed  certain  rules  for  their 
government,  by  which  the  extent  of  ground  they  could  severally  hold 
for  mining  was  designated,  and  their  possessory  right  to  such  ground 
secured  and  enforced,  and  contests  between  them  either  avoided  or  de- 
termined. These  rules  bore  a  marked  similarity,  varying  in  the  several 
districts  only  according  to  the  extent  and  character  of  the  mines ;  dis- 
tinct provisions  being  made  for  different  kinds  of  mining,  such  as 
placer  mining,  quartz  mining,  and  mining  in  drifts  or  tunnels.  They 
all  recognized  discovery  followed  by  appropriation,  as  the  foundation 
of  the  possessor's  title,  and  development  by  working  as  the  condition 

s  The  state  of  California,  admitted  to  the  Union  in  1850,  recognized  miners' 
rules  in  1851  by  an  act  which  provided  that:  "In  actions  respecting  mining 
claims,  proof  shall  be  admitted  of  the  customs,  usages  or  regulations  estab- 
lished and  in  force  at  the  bar  or  diggings  embracing  such  claims ;  and  such 
customs,  usages  or  regulations,  when  not  in  conflict  with  the  Constitution  and 
laws  of  this  state,  shall  govern  the  decision  of  the  action."  St.  1851,  p.  149, 
c.  5.  Prior  to  any  legislation  by  Congress,  this  act  was  held  to  make  the 
miners'  rules  part  of  the  general  law. 

"These  usages  and  customs  were  the  fruit  of  the  times,  and  demanded  by 
the  necessities  of  communities  who,  though  living  under  the  common  law, 
could  find  therein  no  clear  and  well-defined  rules  for  their  guidance  applicable 
to  the  new  conditions  by  which  they  were  surrounded,  but  were  forced  to  de- 
pend upon  remote  analogies  of  doubtful  application  and  unsatisfactory  results. 
Having  received  the  sanction  of  the  Legislature,  they  have  become  as  much  a 
part  of  the  law  of  the  land  as  the  common  law  itself,  which  was  not  adopted 
in  a  more  solemn  form."  MORTON  v.  SOLOMBO  COPPER  MIN.  CO.,  26  CaL 
527,  532,  533. 


6  ORIGIN   AND   HISTORY   OF   AMERICAN    MINING   LAW.          (Ch.  1 

of  its  retention;  and  they  were  so  framed  as  to  secure  to  all  comers, 
within  practicable  limits,  absolute  equality  of  right  and  privilege  in 
working  the  mines.  Nothing  but  such  equality  would  have  been  tol- 
erated by  the  miners,  who  were  emphatically  the  lawmakers,  as  re- 
spects mining,  upon  the  public  lands  in  the  state.  The  first  appro- 
priator  was  everywhere  held  to  have,  within  certain  well-defined  limits, 
a  better  right  than  others  to  the  claims  taken  up ;  and  in  all  controver- 
sies, except  as  against  the  government,  he  was  regarded  as  the  original 
owner,  from  whom  title  was  to  be  traced."  6 

And  again,  in  St.  Louis  Smelting  &  Refining  Co.  v.  Kemp,7  Mr.  Jus- 
tice Field  said :  "Previously  to  the  act  of  July  9,  1870,  Congress  im- 
posed no  limitation  to  the  area  which  might  be  included  in  the  location 
of  a  placer  claim.  This,  as  well  as  every  other  thing  relating  to  the 
acquisition  and  continued  possession  of  a  mining  claim,  was  determin- 
ed by  rules  and  regulations  established  by  miners  themselves.  Soon 
after  the  discovery  of  gold  in  California,  as  is  well  known,  there  was 
an  immense  immigration  of  gold  seekers  into  that  territory.  They 
spread  over  the  mineral  regions,  and  probed  the  earth  in  all  directions 
in  pursuit  of  the  precious  metals.  Wherever  they  went  they  framed 
rules  prescribing  the  conditions  upon  which  mining  ground  might  be 
taken  up — in  other  words,  mining  claims  be  located  and  their  continued 
possession  secured.  Those  rules  were  so  framed  as  to  give  to  all 
immigrants  absolute  equality  of  right  and  privilege.  The  extent  of 
ground  which  each  might  locate — that  is,  appropriate  to  himself — 
was  limited,  so  that  all  might,  in  the  homely  and  expressive  language 
of  the  day,  have  an  equal  chance  in  the  struggle  for  the  wealth  there, 
buried  in  the  earth.  *  *  *  The  rules  and  regulations  originally  es- 
tablished in  California  have  in  their  general  features  been  adopted 
throughout  all  the  mining  regions  of  the  United  States.  They  were  so 
wisely  framed,  and  were  so  just  and  fair  in  their  operation,  that  they 
have  not  to  any  great  extent  been  interfered  with  by  legislation,  either 

e  JENNISON  v.  KIRK,  98  U.  S.  453,  457-458,  25  L.  Ed.  240.  Of  this  pas- 
sage Mr.  Lindley  says:  "This  exposition  of  the  law  governing  mining  rights, 
as  it  existed  in  the  early  history  of  the  mining  industry  in  the  West,  leaves 
nothing  to  be  added  by  the  author.  The  decision  stands  as  a  forensic  classic. 
Judge  Field  was  a  part  of  the  history  of  which  he  wrote.  He  served  as  an 
alcalde  during  the  chaotic  period  antedating  the  admission  of  California  as 
a  state.  He  served  his  state  in  its  first  legislatures,  and  was  the  author  of 
many  of  its  early  laws.  As  Chief  Justice  of  its  Supreme  Court,  his  was  the 
task  to  solve  the  great  and  overshadowing  questions  which  arose  over  land 
titles  in  a  new  state  coming  into  the  Union  under  peculiar  and  novel  condi- 
tions, and  he  carried  to  the  Supreme  bench  of  the  United  States,  not  only  the 
practical  knowledge  acquired  by  personal  contact  with  the  mining  communi- 
ties, but  a  trained  judicial  mind."  I  Lindley  on  Mines  (2d  Ed.)  §  44. 

7  104  U.  S.  636,  649,  650,  26  L.  Ed.  875. 


§  2)  THE   ORIGIN   OF   AMERICAN    MINING   LAW.  7 

state  or  national.  In  the  first  mining  statute,  passed  July  9,  1866,  they 
received  the  recognition  and  sanction  of  Congress,  as  they  had  pre- 
viously the  legislative  and  judicial  approval  of  the  states  and  terri- 
tories in  which  mines  of  gold  and  silver  were  found." 

The  fundamental  thing  to  bear  in  mind  about  these  early  mining 
rules  and  customs,  which  related  to  district  boundaries,  the  size  and 
method  of  location  of  claims,  the  keeping  of  records  by  a  district  re- 
corder, the  amount  of  work  required  to  keep  a  location  alive,  the  way 
in  which  claims  could  be  forfeited,  when  they  should  be  deemed  aban- 
doned,8 etc.,  is  that  they  are  the  foundation  stones  upon  which  our 
Ariierican  mining  law  has  been  built.  They  have  been  called  the  Amer- 
ican common  law  of  mining.9 

With  reference  to  the  origin  of  these  rules,  the  following  words  of 
a  prominent  mining  lawyer  are  of  interest :  "Did  these  miners  initiate  or 
create  their  regulations  something  after  the  fashion  ascribed  to  the 
makers  of  our  own  federal  Constitution  by  Mr.  Gladstone?  Or  did 
they  but  consciously  adopt  and  here  put  in  force  known  mining  regula- 
tions of  other  countries,  of  which  they  were  informed  by  tradition  or 
reading,  or  by  the  knowledge  of  the  inhabitants  of  these  different  lands 
who  congregated  in  this  new  world?  This  is  a  subject  of  dispute. 
Those  who  adopt  the  views  of  Rousseau  find  here  an  illustration  of  the 
civil  compact;  others,  the  reproduction  of  laws  derived  intentionally 
from  older  states ;  others,  the  application  of  the  organizing  faculty  of 
the  American  people  to  the  circumstances  of  their  new  situation.  Upon 
the  one  hand,  it  is  asserted  most  vigorously,  by  those  familiar  through 
participation  in  the  .work,  'that  the  large  emigration  of  young  men 
who  rushed  to  this  modern  Ophir  found  no  laws  governing  the  pos- 
session and  occupation  of  mines  but  the  common  law  of  right,  which 
Americans  alone  are  educated  to  administer ;  that  they  were  forced  by 
the  very  necessity  of  the  case  to  make  laws  for  themselves.'  Again, 
it  is  asserted  that  the  mining  code,  as  far  as  it  can  be  traced,  has  sprung 
from  the  customs  and  usages  of  the  miners,  with  rare  applications  of 
common-law  principles  by  the  courts  to  vary  them ;  or  that  the  origin 
of  the  rules  and  customs  of  the  miners  is  immediately  recognized  by 
those  familiar  with  Mexican  ordinances  and  continental  mining  codes, 
and  with  the  regulations  of  the  Stannary  convocations  among  the  tin 
bounders  of  Devon  and  Cornwall  in  England,  and  the  High  Peak 
regulations  of  the  lead  mines  in  the  county  of  Derby;  finally,  that  all 

«  For  early  district  regulations,  see  the  Report  of  J.  Ross  Browne  on  Mineral 
Resources  in  1867,  being  H.  R.  Ex.  Doc.  No.  29,  39th  Cong.,  2d  Sess. ;  Yale  on 
Mining  Claims  and  Water  Rights,  pp.  73-84.  See,  also,  address  by  Mr.  C.  J. 
Hughes,  Jr.,  of  Denver,  in  24  Am.  Bar  Ass'n  Rep.  (1901)  p.  320  ff. 

•  King  v.  Edwards,  1  Mont.  235. 


8  ORIGIN   AND   HISTORY   OP   AMERICAN    MINING   LAW.          (Ch.  1 

these  regulations  are  founded  in  nature,  based  upon  equitable  prin- 
ciples, comprehensive  and  simple,  have  a  common  origin,  and  are 
matured  by  practice.  Halleck  expressed  the  opinion  that  in  the  main 
the  miners  adopted,  as  best  suited  to  their  wants,  the  principles  of  the 
mining  laws  of  Mexico  and  Spain,  by  which  the  right  of  property  in 
mines  is  made  to  depend  upon  discovery  and  development,  and  that 
discovery  is  made  the  source  of  title,  development  or  working  the  con- 
dition of  i-ts  continuance,  and  that  these  two  principles  constitute  the 
basis  of  all  their  local  laws  and  regulations.  The  merit  of  adoption, 
the  power  of  perceiving  their  appropriateness,  and  willingness  to  en- 
force them,  whatever  the  source  of  suggestion  or  origin,  belongs  to  the 
men  who  made  these  laws.  At  first  they  constituted  all  the  law  there 
was  upon  the  subject,  and  we  have  here  a  modern  instance  of  an  orig- 
inal congregation  of  the  people  creating  the  law  required  by  their 
necessities,  upon  the  assumption  that  the  right  to  legislate  was  in- 
herent in  the  people  themselves.  They  proceeded  upon  the  theory  that 
the  public  domain  belonged  to  the  people ;  that  the  mineral  therein  was 
the  subject  of  free  private  acquisition,  as  a  reward  for  discovery  and 
occupation;  and  thus  defied  in  effect  the  settled  traditions  and  laws 
of  other  countries,  and  the  right  of  the  United  States  as  a  government 
to  the  mineral  contained  in  its  lands.  The  forms  adopted,  the  methods 
of  operation,  the  ideas  of  right,  the  machinery  of  justice  selected  by 
these  miners  in  their  primitive,  inartificial,  but  direct  and  expressive, 
resolutions,  present  to  the  student  of  jurisprudence  and  of  its  originals 
instructive  objects  of  investigation,  since  they  contain  the  history 
of  the  formation  and  growth  of  a  living  system  of  law."  10 

However  the  rules  originated,  it  must  be  said  that  the  miners' 
meetings  at  which  they  were  adopted  played  a  part  in  the  education 
and  civilization  of  the  mining  frontier  comparable  only  to  the  in- 
fluence of  the  New  England  town  meeting  on  New  England  institu- 
tions. 

THE  FEDERAL  MINING  STATUTES. 

3.  Though  the  state  of  California  early  laid  claim  to  the  gold  and. 
silver  in  the  public  domain  within  the  state,  the  California 
Supreme  Court  in  1861  abandoned  the  doctrine  and  opened 
the  way  for  uncontested  federal  legislation.  Accordingly  in 
1866  Congress  passed  the  first  federal  mining  act.  That  act 
authorized  the  location  of  mining  claims  and  provided  for  the 
patenting  of  lode  claims.  The  failure  to  provide  for  the  pat- 
enting of  placer  claims  was  corrected  by  the  placer  act  of 
187O,  and  the  acts  of  1866  and  187O  were  merged  in  and  im- 

10  Mr.  Charles  J.  Hughes,  Jr.,  of  Denver,  Colo.,  in  24  Am.  Bar  Ass'n  Rep. 
(1901)  pp.  325-327. 


§  3)  THE    FEDERAL   MINING    STATUTES.  9 

proved  by  the  act  of  1872.  The  act  of  1872,  as  amended,  is 
embodied  in  the  provisions  of  the  Revised  Statutes  of  the 
United  States  on  mining  and  the  amendments  thereto. 

The  Question  of  State  Sovereignty. 

Very  early  in  the  history  of  California  the  question  of  whether 
the  state  of  California  or  the  federal  government  owned  the  gold  and 
silver  in  the  public  domain  arose.  It  was  conceded  on  all  sides  that 
under  the  government  of  Spain  the  right  to  the  minerals  was  in  the 
crown,  and  that  on  the  separation  of  Mexico  that  right  passed  to  and 
vested  in  the  Mexican  nation.  It  was  also  conceded  by  everybody  that 
by  the  cession  of  California  to  the  United  States  the  title  to  the  min- 
erals passed  from  the  Mexican  nation  to  the  United  States.  But  it 
was  contended  "that  the  minerals  of  gold  a.nd  silver  which  passed  by 
the  cession  were  held  by  the  United  States  in  trust  for  the  future  state, 
and  that  upon  the  admission  of  California  the  ownership  of  them 
vested  in  her."  X1  The  last  contention  was  upheld  by  the  California 
Supreme  Court  in  1853. 12  That  court  said:  "It  is  hardly  necessary 
at  this  period  of  our  history  to  make  an  argument  to  prove  that  the 
several  states  of  the  Union,  in  virtue  of  their  respective  sovereignties, 
are  entitled  to  the  jura  regalia  which  pertained  to  the  king  at  common 
law"  1S — and  asserted  further :  "In  reference  to  the  ownership  of  the 
public  lands,  the  United  States  only  occupied  the  position  of  any  pri- 
vate proprietor,  with  the  exception  of  an  express  exemption  from  state 
taxation.  The  mines  of  gold  and  silver  on  the  public  lands  are  as  much 
the  property  of  this  state,  by  virtue  of  her  sovereignty,  as  are  similar 
mines  in  the  lands  of  private  citizens.  She  has,  therefore,  solely  the 
right  to  authorize  them  to  be  worked,  to  pass  laws  for  their  regulation, 
to  license  miners,  and  to  affix  such  terms  and  conditions  as  she  may 
deem  proper  to  the  freedom  of  their  use.  In  her  legislation  upon  this 
subject  she  has  established  the  policy  of  permitting  all  who  desire  it 
to  work  her  mines  of  gold  and  silver,  with  or  without  conditions ;  and 
she  has  wisely  provided  that  their  conflicting  claims  shall  be  adjudicat- 
ed by  the  rules  and  customs  which  may  be  established  by  bodies  of 
them  working  in  the  same  vicinity."  14 

Perhaps  it  was  this  assertion  of  state  rights,  as  much  as  anything, 
that  prevented  early  mining  legislation  by  Congress,  for  it  was  not  un- 
til 1861,  at  the  beginning  of  the  Civil  War,  in  the  case  of  Moore  v. 

11  MOORE  v.  SMAW,  17  Cal.  199,  217,  79  Am.  Dec.  123. 

12  Hicks  v.  Bell,  3  Cal.  219.    See,  also,  Stoakes  v.  Barrett,  5  Cal.  36. 
is  Hicks  v.  Bell,  3  Cal.  219,  226. 

i*  Hicks  v.  Bell,  3  Cal.  219,  227. 


10  ORIGIN   AND   HISTORY   OF  AMERICAN   MINING   LAW.          (Ch.  1 

Smaw,15  that  the  California  Supreme  Court  finally  abandoned "  this 
claim  of  sovereignty.  The  opinion  in  that  case  by  Mr.  Justice  Field 
is  so  important  in  the  history  of  American  mining  law  that  a  long  quo- 
tation from  it  is  desirable,  particularly  as  that  quotation  will  constitute 
our  only  reference  to  the  doctrine  of  the  common  law  as  to  mines.  In 
that  case  of  Moore  v.  Smaw  the  California  court  said : 

"It  is  undoubtedly  true  that  the  United  States  held  certain  rights 
of  sovereignty  over  the  territory  which  is  now  embraced  within  the 
limits  of  California  only  in  trust  for  the  future  state,  and  that  such 
rights  at  once  vested  in  the  new  state  upon  her  admission  into  the 
Union.  But  the  ownership  of  the  precious  metals  found  in  public  or 
private  lands  was  not  one  of  those  rights.  Such  ownership  stands  in 
no  different  relation  to  the  sovereignty  of  a  state  than  that  of  any 
other  property  which  is  the  subject  of  barter  and  sale.  Sovereignty 
is  a  term  used  to  express  the  supreme  political  authority  of  an  inde- 
pendent state  or  nation.  Whatever  rights  are  essential  to  the  existence 
of  this  authority  are  rights  of  sovereignty.  Thus  the  right  to  declare 
war,  to  make  treaties  of  peace,  to  levy  taxes,  to  take  private  property 
for  public  uses,  termed  the  'right  of  eminent  domain,'  are  all  rights 
of  sovereignty,  for  they  are  rights  essential  to  the  existence  of  supreme 
political  authority.  In  this  country  this  authority  is  vested  in  the  peo- 
ple, and  is  exercised  through  the  joint  action  of  their  federal  and 
state  governments.  To  the  federal  government  is  delegated  the  ex- 
ercise of  certain  rights  or  powers  of  sovereignty,  and,  with  respect 
to  sovereignty,  'rights'  and  'powers'  are  synonymous  terms;  and  the 
exercise  of  all  other  rights  of  sovereignty,  except  ^as  expressly  prohibit- 
ed, is  reserved  to  the  people  of  the  respective  states,  or  vested  by  them 
in  their  local  governments.  When  we  say,  therefore,  that  a  state  of 
the  Union  is  sovereign,  we  only  mean  that  she  possesses  supreme  polit- 
ical authority,  except  as  to, those  matters  over  which  such  authority 
is  delegated  to  the  federal  government  or  prohibited  to  the  states ;  in 
other  words,  that  she  possesses  all  the  rights  and  powers  essential  .to 
the  existence  of  an  independent  political  organization,  except  as  they 
are  withdrawn  by  the  provisions  of  the  Constitution  of  the  United 
States.  To  the  existence  of  this  political  authority  of  the  state — this 
qualified  sovereignty,  or  to  any  part  of  it — the  ownership  of  the  .min- 
erals of  gold  and  silver  found  within  her  limits  is  in  no  way  essential. 
The  minerals  do  not  differ  from  the  great  mass  of  property,  the  owner- 
ship of  which  may  be  in  the  United  States  or  in  individuals,  without 
affecting  in  any  respect  the  political  jurisdiction  of  the  state.  They 

IB  17  Cal.  199,  79  Am.  Oec.  123.  See  the  earlier  cases  of  Merced  Mining  Co. 
v.  Fremont,  7  Cal.  317,  68  Am.  Dec.  262,  and  Boggs  v.  Merced  Min.  Oo.,  14  Cal. 
279 


§  3)  THE   FEDERAL   MINING   STATUTES.  11 

may  be  acquired  by  the  state,  as  any  other  property  may  be ;  but  when 
thus  acquired  she  will  hold  them  in  the  same  manner  that  individual 
proprietors  hold  their  property,  and  by  the  same  right — by  the  right 
of  ownership,  and  not  by  any  right  of  sovereignty. 

"In  Hicks  v.  Bell  the  court  states  correctly  that  according  to  the 
common  law  of  England  mines  of  gold  and  silver  were  the  exclusive 
property  of  the  crown,  and  did  not  pass  in  a  grant  of  the  king  under 
the  general  designation  of  lands  or  mines;  but  it  assumes  that  this 
right  of  the  crown — this  regalian  right — vested  in  the  state.  'It  is 
hardly  necessary/  in  the  language  of  the  opinion,  'at  this  period  of  our 
history,  to  make  an  argument  to  prove  that  the  several  states  of  the 
Union,  in  virtue  of  their  respective  sovereignties,  are  entitled  to  the 
jura  regalia  which  pertained  to  the  king  at  common  law/  It  is  in  this 
assumption  that  the  error  of  the  decision  consists.  Under  the  general 
designation  of  'jura  regalia'  are  comprehended,  not  only  those  rights 
which  pertain  to  the  political  character  and  authority  of  the  king,  but 
also  those  rights  which  are  incidental  to  his  regal  dignity,  and  may  be 
severed  at  his  pleasure  from  the  crown  and  vested  in  his  subjects.  It 
is  only  to  certain  rights  of  the  first  class  that  the  states,  by  virtue  of 
their  respective  sovereignties,  are  entitled.  It  is  to  the  second  class 
that  the  right  to  the  mines  of  gold  and  silver  belongs. 

"In  the  great  case  of  The  Queen  v.  The  Earl  of  Northumberland,  1 
Plowden,  310,  which  was  argued  before  the  Barons  of  the  Exchequer 
and  all  the  Justices  of  England,  it  was  held  by  their  unanimous  judg- 
ment 'that  by  the  law  all  mines  of  gold  and  silver  within  the  realm, 
whether  they  be  in  the  lands  of  the  queen  or  of  subjects,  belong  to  the 
queen  by  prerogative,  with  liberty  to  dig  and  carry  away  the  ores  there- 
of, and  with  other  such  incidents  thereto  as  are  necessary  to  be  used 
for  the  getting  of  the  ore/  and  also  'that  a  mine  royal,  either  of  base 
metal  containing  gold  or  silver,  or  of  pure  gold  and  silver  only,  may,  by 
the  grant  of  the  king,  be  severed  from  the  crown,  and  be  granted  to  an- 
other, for  it  is  not  an  incident  inseparable  to  the  crown,  but  may  be 
severed  from  it  by  apt  and  precise  words/  This  case  was  decided  in 
1568  during  the  reign  of  Queen  Elizabeth,  and  continues  unto  this  day 
an  authoritative  exposition  of  the  doctrines  of  the  common  law.  It  is 
conclusive  to  the  point  that  the  right  to  the  mines  was  not  regarded  by 
that  law  as  an  incident  of  sovereignty,  but  was  regarded  as  a , personal 
prerogative  of  the  king,  which  could  be  alienated  at  his  pleasure. 

"No  reasons  in  support  of  the  prerogative  are  stated  in  the  resolu- 
tion of  the  judges,  and  those  advanced  in  argument  by  the  queen's 
counsel  would  be  without  force  at  the  present  time.  Onslow,  the 
queen's  solicitor,  says  Plowden  'alleged  three  reasons  why  the  king 
shall  have  mines  and  ores  of  gold  and  silver  within  the  realm,  in  what- 


12  ORIGIN   AND   HISTORY   OF   AMERICAN   MINING    LAW.          (Ql.  1 

soever  land  they  are  found.  The  first  was  in  respect  to  the  excellency 
of  the  thing,  for  of  all  things  which  the  soil  within  this  realm  pro- 
duces or  yields  gold  and  silver  is  the  most  excellent,  and  of  all  persons 
in  the  realm  the  king  is,  in  the  eye  of  the  law,  most  excellent ;  and  the 
common  law,  which  is  founded  upon  reason,  appropriates  everything  to 
the  person  whom  it  best  suits,  *  *  *  and,  because  gold  and  silver 
are  the  most  excellent  things  which  the  soil  contains,  the  law  has  ap- 
pointed them  (as  in  reason  it  ought)  to  the  person  who  is  most  ex- 
cellent, and  that  is  the  king.  *  *  *  The  second  reason  was  in  re- 
spect to  the  necessity  of  the  thing;  for  *  *  *  the  office  of  the 
king,  to  which  the  law  has  appointed  him,  is  to  preserve  his  subjects; 
and  their  preservation  consists  in  two  things,  viz.,  in  the  army,  to  de- 
fend them  against  hostilities,  and  in  good  laws.  And  an  army  cannot 
be  had  and  maintained  without  treasure,  for  which  reason  some  au- 
thors, in  their  books,  call  treasure  the  sinews  of  war;  and  therefore, 
inasmuch  as  God  has  c.reated  mines  within  this  realm  as  a  natural  pro- 
vision of  treasure  for  the  defense  of  the  realm,  it  is  reasonable  that 
he  who  has  the  government  and  care  of  the  people,  whom  he  cannot 
defend  without  treasure,  should  have  the  treasure  wherewith  to  de- 
fend them.  *  *  *  The  third  reason  was  in  respect  of  its  con- 
venience to  the  subjects  in  the  way  of  mutual  commerce  and  traffic; 
for  the  subjects  of  the  realm  must,  of  necessity,  have  intercourse  or 
dealing  with  one  another,  for  no  individual  is  furnished  with  all  neces- 
sary commodities,  but  one  has  need  of  the  things  which  another  has, 
and  they  cannot  sell  or  buy  together  without  coin/  *  *  * 

"It  would  be  a  waste  of  time  to  show  that  none  of  the  reasons  thus 
advanced  in  support  of  the  right  of  the  crown  to  the  mines  can  avail 
to  sustain  any  claim  of  the  state  to  them.  The  state  takes  no  property 
by  reason  of  'the  excellency  of  the  thing/  and  taxation  furnishes  all 
the  requisite  means  for  the  expenses  of  government.  The  convenience 
of  citizens  in  commercial  transactions  is  undoubtedly  promoted  by  a 
supply  of  coin,  and  the  right  of  coinage  appertains  to  sovereignty. 
But  the  exercise  of  this  right  does  not  require  the  ownership  of  the 
precious  metals  by  the  state,  or  by  the  federal  government,  where  this 
right  is  lodged  under  our  system,  as  the  experience  of  every  day 
demonstrates.  The  right  of  the  crown,  whatever  may  be  the  reasons 
assigned  for  its  maintenance,  had  in  truth  its  origin  in  an  arbitrary  ex- 
ercise of  power  by  the  king,  which  was  at  the  time  justified  on  the 
ground  that  the  mines  were  required  as  a  source  of  revenue.  *  *  * 

"It  follows,  from  the  views,  we  have  thus  expressed,  that  the  first  po- 
sition advanced  by  the  defendants  cannot  be  sustained ;  that  the  gold  and 
silver  which  passed  by  the  cession  from  Mexico  were  not  held  by  the. 
United  States  in  trust  for  the  future  state ;  that  the  ownership  of  them 


§  3)  THE   FEDERAL   MINING    STATUTES.  13 

is  not  an  incident  of  any  right  of  sovereignty;  that  the  minerals  were 
held  by  the  United  States  in  the  same  manner  as  they  hold  any  other 
public  property  which  they  acquired  from  Mexico ;  and  that  their  own- 
ership over  them  was  not  lost,  or  in  any  respect  impaired,  by  the  ad- 
mission of  California  as  a  state."  1<J 

The  final  conclusion  of  the  California  court  in  this  matter  has  ever 
since  been  acquiesced  in,  where  the  question  has  been  between  the 
United  States  as  a  landed  proprietor  and  the  state  in  which  the  Unit- 
ed States  land  is  situated.17  It  must  not  be  supposed,  from  the  fore- 
going, however,  that  New  York,  for  instance,  is  in  error  in  insisting 
that  it  owns  the  gold  and  silver  within. its  borders.  While  Moore  v. 
Smaw  is  law  as  to  United  States  domain  within  a  state,  the  New  York 
doctrine  would  seem  to  be  perfectly  sound  for  New  York  and  other 
states  where  the  United  States  never  has  owned  any  public  lands.  The 
case  of  Shoemaker  v.  United  States18  bears  this  out.  In  that  case, 
which  adopted  the  opinion  of  the  lower  court  on  the  point,  it  was  de- 
cided that  by  the  grant  of  Charles  I  to  Lord  Baltimore  all  veins,  mines, 
and  quarries  of  gold,  silver,  gems,  and  precious  stones  in  Maryland 
passed  to  the  grantee  in  fee,  he  yielding  to  the  king  the  fifth  part  of  all 
gold  and  silver  ore  which  should  happen  from  time  to  time  to  be  found 
there;  that  after  the  Revolution  the  confiscation  act  of  1780  passed 
by  Maryland  ended  the  proprietary's  title  and  vested  it  in  the  state  of 
Maryland,  which  had  by  the  Revolution  become  entitled  also  to  the 
king's  one-fifth ;  and  that  the  act  of  cession  of  1791,  conveying  the  Dis- 
trict of  Columbia  to  the  United  States,  passed  the  title  to  gold  and  sil- 
ver mines  in  the  District  of  Columbia  to  the  United  States.  This  de- 
cision certainly  favors  the  New  York  theory  for  the  thirteen  original 
states,19  but  the  doctrine  of  Moore  v.  Smaw  is  the  one  that  prevails 
where  what  we  call  the  American  mining  law  exists. 

Though  Moore  v.  Smaw  was  decided  in  1861,  it  was  not  until  the 
act  of  July  26,  1866,  that  Congress  attempted  to  regulate  mining,  and 
actually  legislated  on  the  subject.  The  power  of  Congress  was,  of 
course,  ample.20  The  statute  of  July  26,  1866,21  was  the  first  general 

16  MOORE  v.  SMAW,  17  Oal.  199,  218-222,  79  Am  Dec.  123.  For  the  situ- 
ation in  England  to-day,  see  St.  1  W.  &  M.  c.  30,  and  St.  5  W.  &  M.  c.  6,  and 
the  case  of  Attorney  General  v.  Morgan,  [1891]  1  Ch.  432. 

IT  Doran  v.  Central  Pac.  R.  Co.,  24  Cal.  245. 

is  147  U.  S.  282,  13  Sup.  Ct.  361,  37  I/.  Ed.  170. 

is  See,  also,  Fremont  v.  U.  S.,  58  U.  S.  542,  15  L.  Ed.  241. 

20  "With  respect  to  the  public  domain,  the  Constitution  vests  in  Congress 
the  power  of  disposition  and  of  making  all  needful  rules  and  regulations.    That 
power  is  subject  to  no  limitations.     Congress  has  the  absolute  right  to  pre- 
scribe the  times,  the  conditions,  and  the  mode  of  transferring  this  property, 

21  14  stat.  251,  c.  262. 


14  OEIGIN   AND   HISTORY   OF   AMERICAN   MINING   LAW.  (Ch.  1 

statute  providing  for  the  conveyance  of  mines  or  minerals  by  the 
United  States,  though  curiously  enough  its  title,  "An  act  granting 
the  right  of  way  to  ditch  and  canal  owners  over  the  public  lands  and 
for  other  purposes,"  gives  no  indication  of  that  fact.22  The  act  of 
February  27,  1865,  had  previously  recognized  miners'  rights  by  pro- 
viding "that  no  pending  action  between  individuals  in  any  of  the  courts 
for  the  recovery  of  a  mining  title,  or  for  damages  to  any  such  title, 
shall  be  affected  by  the  fact  that  the  paramount  title  to  the  land  on 
which  such  mines  lie  is  in  the  United  States,  but  each  case  shall  be 
judged  by  the  law  of  possession."23  The  act  of  1866  was,  however, 
the  first  general  federal  mining  statute. 

The  Act  of  1866. 

The  essential  features  of  the  act  of  1866  were:  (1)  The  declaration 
"that  the  mineral  lands  of  the  public  domain,  both  surveyed  und  un- 
surveyed,  are  hereby  declared  to  be  free  and  open  to  exploration  and 
occupation  by  all  citizens  of  the  United  States,  and  those  who  have 
declared  their  intention  to  become  citizens,  subject  to  such  regulations 
as  may  be  prescribed  by  law,  and  subject  also  to  the  local  customs  or 
rules  of  miners  in  the  several  mining  districts,  so  far  as  the  same  may 
not  be  in  conflict  with  the  laws  of  the  United  States/' 24  (2)  A  pro- 
vision giving  extralateral  rights.  (3)  A  provision  for  the  patenting  of 
lode  claims,  with  a  provision  for  adverse  suits.  (4)  A  provision  recog- 
nizing and  protecting  water  rights  vested  by  priority  of  possession. 

In  this  act,  incomplete  and  faulty  in  many  respects  though  it  was, 
Congress  recognized  its  moral  obligations.  As  the  United  States  Su- 
preme Court  said  before  its  passage:  "We  know,  also,  that  the  terri- 
torial Legislature  [of  Nevada]  has  recognized  by  statute  the  validity 
and  binding  force  of  the  rules,  regulations,  and  customs  of  the  mining 
districts.  And  we  cannot  shut  our  eyes  to  the  public  history,  which  in- 
forms us  that  under  this  legislation,  not  only  without  interference  by 

or  any  part  of  it,  and  to  designate  the  persons  to  whom  the  transfer  shall  be 
made.  No  state  legislation  can  interfere  with  this  right  or  embarrass  its  ex- 
ercise ;  and,  to  prevent  the  possibility  of  any  attempted  interference  with  it, 
a  provision  has  been  usually  inserted  in  the  compacts  by  which  new  states 
have  been  admitted  into  the  Union  that  such  interference  with  the  primary  dis- 
posal of  the  soil  of  the  United  States  shall  never  be  made."  Gibson  v.  Chou- 
teau,  13  Wall.  (U.  S.)  92,  99,  20  L.  Ed.  534;  Shannon  v.  U.  S.  (C.  C.  A.)  160 
Fed.  870. 

22  in  Yale  on  Mining  Claims  and  Water  Rights,  12,  the  explanation  of  the 
actfs  title  is  made.    The  mining  bill  was  tacked  onto  a  bill  in  regard  to  ditches 
in  order  to  expedite  the  mining  bill's  passage. 

23  13  stat.  441,  c.  64,  §  9,  now  Rev.  St.  U.  S.  §  910  (U.  S.  Oomp.  St.  1901,  p. 
679),  given  in  appendix. 

24  14  Stat.  251,  c.  262. 


§  3)  THE   FEDERAL  MINING   STATUTES.  15 

the  national  government,  but  under  its  implied  sanction,  vast  mining 
interests  have  grown  up,  employing  many  millions  of  capital,  and  con- 
tributing largely  to  the  prosperity  and  improvement  of  the  whole  coun- 
try." 25 

By  the  act  of  1866,  enacted  in  recognition  of  these  moral  obligations 
of  the  United  States,  Congress  "passed  a  law  by  which  title  to  mineral 
lands  might  be  acquired  from  the  government  at  nominal  prices,  and 
by  which  the  idea  of  a  royalty  in  the  product  of  the  mines  was  forever 
relinquished."26  As  Mr.  Lindley  so  well  says:  "What  had  thereto- 
fore been  technically  a  trespass  became  thenceforward  a  licensed  priv- 
ilege, untrammeled  by  governmental  surveillance  or  the  exaction  of 
burdensome  conditions.  Such  conditions  as  were  imposed  were  no 
more  onerous  than  those  which  the  miners  had  imposed  upon  them- 
selves by  their  local  systems.  That  such  a  declaration  of  governmental 
policy  stimulated  and  encouraged  the  development  of  the  mining  in- 
dustry in  the  West  is  a  matter  of  public  history."  2T 

One  astonishing  defect  of  the  act  of  1866  was  the  failure  to  provide 
for  the  patenting  of  placer  claims.  The  defect  was  due,  probably,  to 
the  diminishing  importance  of  placer  mining  in  California  and  to  the 
widespread  feeling  that  lode  mining,  which  had  extended  to  several 
states  and  territories  and  caused  important  litigation,  was  in  especial 
need  of  legislation.28  That  Senator  Stewart  of  Nevada  was  one  of 
the  authors  of  the  act  zg  and  that  in  Nevada  the  needs  of  lode  mining 
were  all-absorbing  were  additional  reasons.  Wrhatever  the  reason,  it 
was  not  until  the  placer  law  of  1870  that  placer  lands  could  be  patented. 

But  the  act  of  1866  exhibited  other  defects,  the  natural  outcome  of 
the  mining  law  evolution.  When  the  miners  rushed  into  California  on 
the  discovery  of  gold,  the  bar  in  placer  mining,  of  course,  and  the  dis- 
covery lode,  as  a  consequence,  in  lode  mining,  became  the  all-important 
things.  The  miners'  rules  and  regulations,  originated  in  California, 
and  copied  elsewhere  in  the  mining  region,  provided  that,  within  cer- 
tain defined  limits,  a  discovery  vein,  with  all  its  dips,  angles,  and  varia- 
tions, should  belong  to  the  locator,  but  that,  in  general,  no  other  vein 
or  ore  should.  Take,  for  instance,  the  following  articles  from  the 

25  SPARROW  v.  STRONG,  3  Wall.  97,  104,  18  L.  Ed.  49.     See  Conger  v. 
Weaver,  6  Gal.  548,  65  Am.  Dec.  528;   Gold  Hill  Quartz  Min.  Co.  v.  Ish,  5  Or. 
104.     But  see  Boggs  v.  Merced  Min.  Co.,  14  Cal.  279. 

26  IVANHOE  MINING  CO.  V.  CONSOLIDATED  MIN.  CO.,  102  U.  S.  167, 
173,  26  L.  Ed.  126. 

27  i  Lindley  on  Mines  (2d  Ed.)  §  55.     See  Wolfley  v.  Lebanon  Min,  Co.,  4 
Colo.  112;    Robertson  v.  Smith,  1  Mont.  410. 

28  See  1  Lindley  on  Mines  (2d  Ed.)  §  57. 

29  JENNISON  v.  KIRK,  98  U.  S.  453,  459,  25  L.  Ed.  240. 


16  ORIGIN  AND   HISTORY   OF  AMERICAN   MINING   LAW.          (Ch.  1 

Regulations  of  Reese  River  District,  Nevada,  which,  because  adopted 
in  Senator  Stewart's  own  state,  may  well  have  influenced  the  act  of 
1866: 

"Sec.  6.  Each  claimant  shall  be  entitled  to  hold  by  location  two  hun- 
dred feet  on  any  lead  in  the  district,  with  all  the  dips,  spurs,  and  angles, 
offshoots,  outcrops,  depths,  widths,  variations,  and  all  the  mineral  and 
other  valuables  therein  contained;  the  discoverer  of  and  locator  of  a 
new  lead  being  entitled  to  one  claim  extra  for  discovery. 

"Sec.  7.  The  locator  of  any  lead,  lode,  or  ledge  in  the  district  shall 
be  entitled  to  hold  on  each  side  of  the  lead,  lode,  or  ledge  located  by 
him  or  them  one  hundred  feet ;  but  this  shall  not  be  construed  to  mean 
any  distinct  or  parallel  ledge  within  the  two  hundred  feet  other  than 
the  one  originally  located."  30 

Such  mining  regulations  were  responsible,  no  doubt,  for  the  pro- 
vision of  section  3  of  the  act  of  1866  that  the  plat,  survey,  or  descrip- 
tion filed  on  an  application  for  patent  "shall  in  no  case  cover  more  than 
one  vein  or  lode,  and  no  patent  shall  issue  for  more  than  one  vein  or 
lode,  which  shall  be  expressed  in  the  patent  issued."  31  The  lode  was 
the  principal  thing  and  the  surface  an  incident  under  the  act  of  1866,32 
because  it  had  been  so  under  the  miners'  rules. 

In  speaking  of  Flagstaff  Silver  Mining  Co.  v.  Tarbet,33  and  other 
decisions  involving  the  act  of  1866,  Mr.  Justice  Brewer  says :  "These 
decisions  show  that,  while  the  express  purpose  of  the  statute  was  to 
grant  the  vein  for  so  many  feet  along  its  course,  yet  such  grant  could 
only  be  made  effective  by  a  surface  location  covering  the  course  to  such 
extent."  34  But,  while  a  reasonable  amount  of  surface  for  the  con- 
venient working  of  the  lode  was  a  necessary  incident  to  the  lode,  other 
veins  within  that  surface  were  not  necessary,  and  hence  not  incident. 
As  to  surface  ground  the  act  of  1866  merely  left  the  amount  to  the  dis- 
cretion of  the  Land  Department.  "Obviously,"  says  Mr.  Justice  Brew- 
er, "the  statute  contemplated  the  patenting  of  a  certain  number  of  feet 
of  the  particular  vein  claimed  by  the  locator,  no  matter  how  irregular 
its  course,  [but  it?]  made  no  provision  as  to  the  surface  area  or  the 
form  of  the  surface  location,  leaving  the  Land  Department  in  each  parr 
ticular  case  to  grant  so  much  of  the  surface  as  was  'fixed  by  local  rules/ 

so  Mineral  Resources,  p.  247. 

si  14  Stat.  251,  c.  262,  §  3. 

32  CALHOUN  GOLD  MIN.  CO.  v.  A  JAX  GOLD  MIN.  CO.,  27  Colo.  1,  59  Pac. 
607,  612,  50  L.  R.  A.  209,  83  Am.  St.  Rep.  17 ;  Del  Monte  Mining  &  Milling  Co. 
v.  Last  Chance  Mining  &  Milling  Co.,  171  U.  S.  55,  63,  18  Sup.  Ct.  895,  43  L. 
Ed.  72. 

as  98  U.  S.  463,  25  L,  Ed.  253. 

a*  Del  Monte  Mining  &  Milling  Co.  v.  Last  Chance  Mining  &  Milling  Co.,  171 
U.  S.  55,  65,  18  Sup.  Ct.  895,  43  L.  Ed.  72. 


§  3)  THE   FEDERAL   MINING    S^TUTES.  \^  17 


ATUTES. 

XL 

udgment  neces 


or  was,  in  the  absence  of  such  rules,  in  it^Judgment  necessary/for  the 
convenient  working  of  the  mine.  The  pa^v^^uw^pn^l^^vein  was 
thus  patented  was  permitted  to  follow  it  on  ir^Sdqrt^my  extent,  al- 
though thereby  passing  underneath  lands  to  which  the  owner  of  the 
vein  had  no  title.  As  might  be  expected,  the  patents  issued  under  this 
statute  described  surface  areas  very  different  and  sometimes  irregular 
in  form.  Often  they  were  like  a  broom,  there  being  around  the  dis- 
covery shaft  an  amount  of  ground  deemed  large  enough  for  the  con- 
venient working  of  the  mine,  and  a  narrow  strip  extending  therefrom 
as  the  .handle  of  the  broom.35  This  strip  might  be  straight,  or  in  a 
curved  or  irregular  line,  following,  as  was  supposed,  the  course  of  the 
vein.  Sometimes  the  surface  claimed  and  patented  was  a  tract  of  con- 
siderable size,  so  claimed  with  the  view  of  including  the  apex  of  the 
vein,  in  whatever  direction  subsequent  explorations  might  show  it  to 
run.  And,  again  where  there  were  local  rules  giving  to  the  discoverer 
of  a  mine  possessory  rights  in  a  certain  area  of  surface,  the  patent  fol- 
lowed those  rules  and  conveyed  a  similar  area.  Hven  under  this  stat- 
ute, although  its  express  purpose  was  primarily  to  grant  the  single 
vein,  yet  the  rights  of  the  patentee  beneath  the  surface  were  limited 
and  controlled  by  his  rights  upon  the  surface.  If,  in  fact,  as  shown  by 
subsequent  explorations,  the  vein  on  its  course  or  strike  departed  from 
the  boundary  lines  of  the  surface  location,  the  point  of  departure  was 
the  limit  of  right.  In  other  words,  he  was  not  entitled  to  the  claimed 
and  patented  number  of  feet  of  the  vein,  irrespective  of  the  question 
whether  the  vein  in  its  course  departed  from  the  lines  of  the  surface 
location."36 

In  other  words,  while  before  patent  the  owner  of  a  lode  could  fol- 
low it  in  whatever  direction  its  strike  might  go,  so  long  as  he  kept 
within  the  length  of  strike  allowed  him  by  virtue  of  his  location,  after 
patent,  even  though  the  surface  was  an  incident  of  the  lode,  he  could 
not  have  more  of  the  strike  of  the  lode  than  was  included  in  his  pat- 
ent.37 "One  who  discovers  and  locates  a  lode  mining  claim  under  the 
act  of  1866  thereby  renounces  and  abandons  all  rights  and  privileges 
to  follow  his  lode  on  its  course  beyond  the  exterior  lines  of  his  patented 
claim,  when  he  locates  it  upon  the  surface  of  the  ground,  enters  it,  and 
accepts  a  patent  for  it  under  the  law."  38 

35  For  curious  shapes  of  claims  under  the  act  of  1866,  see  1  Lindley  on  Mines 
(2d.  Ed.)  §  59. 

se  Del  Monte  Mining  &  Milling  Co.  v.  Last  Chance  Mining  &  Milling  Co., 
171  U.  S.  55,  63,  64,  18  Sup.  Ct.  895,  898,  43  L.  Ed.  72. 

37  Flagstaff  Silver  Mining  Co.  v.  Tarbet,  98  U.  S.  463,  25  L.  Ed.  253. 

ss  Larned  v.  Jenkins,  113  Fed.  634,  636,  51  C.  C.  A.  344,  citing  New  Dunder- 
berg  Mining  Co.  v.  Old,  79  Fed.  598,  606,  25  C.  C.  A.  116  ;  Wolfley  v.  Lebanon 
COST.MIN.L.—  2 


18  ORIGIN   AND    HISTORY   OF   AMERICAN    MINING   LAW.  (Cll.  L 

Despite  the  issuance  under  the  act  of  1866  of  a  patent  covering  a 
definite  surface,  a  subsequent  claimant,  who  first  showed  that  two  lodes 
were  covered,  could  doubtless  locate  the  extra  vein.  As  the  Idaho  court 
said,  where  the  question  was  between  a  locator  before  patent  and  one 
seeking  to  get  an  extra  vein:  "It  is  true  that  the  law  allows  him  [the 
locator]  to  hold  only  one  lode  by  this  location;  but  the  fact  that  two 
ledges  exist  within  these  bounds  must  first  be  established  before  the 
subsequent  claimant  has  any  lawful  right  to  pass  into  them.  If  by 
going  outside  of  these  boundaries,  and  tracing  it  into  them,  he  shows 
that  another  and  distinct  lode  exists,  then  he  may  pass  boundaries  that 
would  otherwise  be  sacred  to  the  first  locator.  But  until  he  does  so  he 
has  no  right  to  go  upon  the  ground  which  the  law  has  already  given 
'to  his  neighbor,"  39  Indeed,  the  situation  was  clearly  analogous  to 
the  case  of  known  lodes  in  placers  under  the  act  of  1872.  In  both  cases 
the  patent  states  expressly  the  reservation  which  the  law  makes.40 

But,  apart  from  the  question  of  the  extraordinary  shape  given  to 
claims  under  the  act  of.  1866,  the  question  of  the  extent  of  the  strike 
of  the  vein  located,  and  the  question  of  several  lodes  included  in  the 
surface  boundaries,  there  were  other  difficulties  under  the  act,  such 
as  the  determination  of  extralateral  rights.  These  we  shall  have  oc- 
casion to  advert  to  later. 

The  Placer  Act  of  1870. 

The  act  of  1866  was  amended  by  the  act  of  July  9,  1870,41  which 
provided  for  the  patenting  of  placers.  This  act  of  1870  was  the  first 
act  for  the  patenting  of  placers,  and  therein  lies  its  importance.  The 
general  act  of  May  10,  1872,  which  is  substantially  in  force  today,  re- 
tained practically  all  of  the  provisions  of  this  placer  act  of  1870. 

The  Act  of  1872. 

The  act  of  May  10,  1872,42  was  drawn  on  a  different  theory  from 
the  act  of  1866  with  reference  to  lode  claims.  A  fundamental  differ- 
ence from  the  earlier  act  is  that  under  the  act  of  1872  a  miner  locates 


Min.  Co.,  4  Colo.  112,  116 ;   Lebanon  Min.  Co.  v.  Rogers,  8  Colo.  34,  38,  5  Pac. 
661. 

39  Atkins  v.  Hendree,  1  Idaho,  95,  99.    Compare  Eureka  Cases,  4  Sawy.  (U. 
S.)  302,  323,  Fed.  Gas.  No.  4,548. 

40  "In  all  patents  issued  under  the  act  [of  1866]  a  fecital  was  inserted  re- 
stricting the  grant  to  one  vein,  or  lode  described  therein,  and  providing  that 
any  other  vein  or  lode  discovered  within  the  surface  ground  described  should 
be  excepted  and  excluded  from  the  operation  of  the  grant."    1  Lindley  on  Mines 
(2d.  Ed.)  §  58.    On  reservation  of  known  lodes  in  placers,  see  infra,  chapters 
XVIII  and  XX ;  2  Lindley  on  Mines  (2d.  Ed.)  §•  781. 

41  16  Stat.  217,  c.  235. 

42  17  Stat.  91,  c.  152. 


§  3)  THE   FEDERAL   MINING   STATUTES.  19 

a  surface,  which  must  be  so  laid  out  as  to  include  the  top  or  apex  of 
his  lode.  If  he  succeeds  in  making  a  valid  location,  then  he  also  ac- 
quires all  other  veins  or  lodes  apexing  within  the  ground.  Where  un- 
der the  law  of  1866  the  miner  located  a  lode,  under  the  act  of  1872  he 
locates  a  surface  with  a  lode  in  it.43  The  act  of  1866  threw  open  to 
exploration  and  occupation  the  mineral  lands  of  the  United  States,  and 
gave  the  locator  the  right  to  get  a  patent  for  his  "mine."  The  act  of 
1872  threw  open  to  exploration  and  purchase  all  valuable  mineral  de- 
posits, and  made  free  and  open  to  occupation  and  purchase  "the  land  in 
which  they  are  found."  Under  the  act  of  1866  the  patentee  got  the 
lode  located,  but  only  one  lode.  Under  the  act  of  1872  his  patent  gives 
him  all  lodes  apexing  in  what  the  common  law  would  denominate 
his  ground.  No  longer  is  the  surface  ground,  as  under  the  act  of  1866, 
merely  for  the  convenient  working  of  the  claim;  under  the  act  of 
1872,  it  has  become  an  essential  part  of  the  claim.  It  is  so  essential  that 
where  there  is  a  vein,  but  no  surface  is  left  to  locate,  it  is  held  that  the 
vein  cannot  be  located.44 

The  act  of  1872  has  been  construed  to  make  other  important  changes. 
Because  of  a  provision  that  "the  end  lines  of  each  claim  shall  be  parallel 
to  each  other"  the  act  has  been  held  to  mean^attta(^tan  be  no  ex- 
tralateral  rights  on  the  vein  unless  the  end  lines '  are^ftrallel,  so  far  at 
least  as  the  end  lines  extended  would  diverge  jrapBFclip.  Then  the 
possible  size  of  a  claim  is  much  increased  und«pe  act  of  1872.  By 
the  act  of  1866  no  location  could  exceed  200  fee^i  length,  with  an  ad- 
ditional claim  for  discovery  to  the  discoverer.  *fhe  width  of  the  lo- 
cation was  not  restricted,  however,  except  by  district  rules.  By  the  act 
of  1872  a  lode  claim  cannot  exceed  1,500  feet  in  length  nor  600 
feet  in  width.  By  the  act  of  1866  only  one  location  on  a  vein 
could  be  made,  except  that  the  discoverer  could  make  two  locations, 
and  not  more  than  3,000  feet  could  be  taken  in  any  one  claim  by  any 
association  of  persons.  By  the  act  of  1872  as  many  lode  claims  may  be 
located  by  one  person  as  he  can  make  discoveries  for,45  it  being  pro- 
vided that  "no  location  of  a  mining  claim  shall  be  made  until  the  dis- 
covery of  the  vein  or  lode  within  the  limits  of  the  claim  located."  48 
By  the  act  of  1866  the  lodes  that  could  be  located  were  those  of  "quartz 
or  other  rock  in  place,  bearing  gold,  silver,  cinnabar,  or  copper."  By 

43  Gleeson  v.  Martin  White  Min.  Co.,  13  Nev.  442,  457. 

44  Traphagen  v.  Kirk,  30  Mont.  562,  77  Pac.  58,  and  cases  cited.     See,  also, 
Heil  v.  Martin  (Tex.  Civ.  App.)  70  S.  W.  430 ;   Gleeson  v.  Martin  White  Min. 
Co.,  13  Nev.  442. 

45  But  see  B.  &  C.  Cornp.  Or.  §  3974.     Compare  Prosser  v   Parks,  18  Cai. 
47.     See  discussion  of  Oregon  act  in  chapter  X,  §  45,  infra. 

4«  Rev.  St.  U.  S.  §  2320  (U.  S.  Comp.  St.  1901,  p.  1424). 


20  ORIGIN  AND   HISTORY   OF  AMERICAN   MINING   LAW.          (Ch.  1 

the  act  of  1872  they  were  those  "of  quartz  or  other  rock  in  place,  bear- 
ing gold,  silver,  cinnabar,  lead,  tin,  copper,  or  other  valuable  deposits." 
Besides  departing  from  the  act  of  1866  in  the  above  particulars 
and  in  others,  the  act  of  1872  provided  for  the  ownership  of  cross- 
veins  and  veins  uniting  on  the  dip,  made  more  complete  and  definite  the 
provisions  about  patenting  claims,  fixed  the  method  of  acquiring  known 
lodes  in  placer  ground,  and  legislated  about  tunnel  site  locations,  mill 
sites,  etc.  With  reference  to  lode  claims,  the  act  of  1872  provided 
that  the  location  must  be  distinctly  marked  on  the  ground,  so  that  its 
boundaries  can  be  readily  traced,  that  records,  where  required,  shall 
contain  the  name  or  names  of  the  locators,  the  date  of  the  location,  and 
such  a  description  of  the  claim  or  claims  located  by  reference  to  some 
natural  object  or  permanent  monument  as  will  identify  the  claim,  and 
that  on  each  claim,  until  a  patent  shall  have  been  issued  therefor,  not 
less  than  $100  worth  of  labor  shall  be  performed  or  improvements 
made  during  each  year.  The  act  also  provided  for  forfeitures. 

Subsequent  Statutes. 

Since  1872  there  have  been  a  number  of  amendments  to  the  mining 
laws.  Some  of  the  amendments  except  particular  states  from  the 
operation  of  the  mining  laws.  One  extends  the  time  for  the  perform- 
ance of  annual  labor ;  others,  such  as  the  act  in  regard  to  saline  lands, 
the  stone  and  timber,  act,  the  act  in  regard  to  petroleum  lands,  etc., 
govern  special  kinds  o^f  mining  land ;  and  still  others,  such  as  the  Alas- 
kan and  the  Philippine  acts,  are  mining  codes  for  isolated  parts  of 
United  States  territory.  Perhaps  the  most  important  single  acts  of 
general  application  to  all  kinds  of  mining  claims  are  the  act  of  January 
22,  1880,47  fixing  a  uniform  time  for  the  performance  of  annual  labor 
on  all  unpatented  claims  located  since  the  act  of  1872,  and  that  of 
March  3,  1881,48  providing  that  in  adverse  suits,  if  title  to  the  ground 
in  controversy  is  not  established  by  either  party,  "the  jury  shall  so  find, 
and  judgment  shall  be  entered  according  to  the  verdict."  The  impor- 
tant amendments  will  be  dealt  with  in  the  discussion  of  the  mining 
problems  to  which  they  apply. 

The  United  States  Revised  Statutory  Provisions  on  Mining. 

The  Revised  Statutes  of  the  United  States  are  in  effect  a  revision 
and  consolidation  of  the  previous  statutes.  It  is  familiar  doctrine  of 
statutory  construction  that  "when  the  meaning  is  plain  the  courts  can- 
not look  to  the  statutes  which  have  been  revised  to  see  if  Congress  erred 
in  that  revision,  but  may  do  so  when  necessary  to  construe  doubtful 

47  21  Stat  61,  c.  9,  §  2  (U.  S.  Oomp.  St.  1901,  p.  1426). 
«*  21  Stat.  505,  c.  140  (U.  S.  Comp.  St.  1901,  p.  1431). 


§  4)  SUPPLEMENTAL   STATE   LEGISLATION.  21 

language  used  in  expressing  the  meaning  of  Congress."  49  The  acts 
of  1866,  1870,  and  1872  are  to  be  examined  only  in  case  of  doubt  as 
to  the  meaning  of  the  Revised  Statutes. 


SUPPLEMENTAL  STATE  LEGISLATION. 

4.  In  the  act  of  1872  Congress  authorized  the  various  states  in  which 
•was  situated  public  mineral  domain  of  the  United  States  to 
legislate  in  regard  to  mining.  Such  legislation  is  necessarily 
only  supplemental  to  the  federal  legislation,  but  covers  a  large 
and  important  field.  All  of  the  mining  law  states,  except  Cali- 
fornia, have  mining  codes,  and  the  details  of  such  codes  are 
considered  in  subsequent  chapters. 

Since  the  congressional  legislation  of  1866,  1870,  and  1872,  the 
different  mining  states  have  legislated  on  the  subject  of  mining.  Of 
all  the  states  and  territories  of  the  mining  region,  California  is  the 
only  one  without  statutory  regulations.  In  California,  because  a  min- 
ing code  enacted  in  1897  was  repealed  in  1899  and  1900,  all  the  min- 
ing requirements,  if  any,  in  excess  of  those  prescribed  by  the  federal 
statutes  (with  the  exception,  probably,  of  record,  which  is  still  a  state 
requirement),50  are  determined  by  district  regulations  and  customs.51 
The  right  of  Congress  to  authorize  (as  in  the  act  of  1872  it  did  au- 
thorize) supplemental  state  legislation  52  is  thoroughly  well  established 
by  authority.  State  legislation  must,  of  course,  be  purely  supplemental, 
in  no  way  infringing  any  provision  of  Congress  in  regard  to  mining; 
but  a  very  great  latitude  is  left  to  the  states,  as  the  case  of  Montana, 
where  down  to  1907  somewhat  stringent  legislation  in  regard  to  mining 
was  indulged  in,  and  the  cases  of  Nevada  and  Oregon,  where  similar 
legislation  still  exists,  show.53 

49  U.  S.  v.  Bowen,  100  U.  S.  508,  513,  25  L.  Ed.  631. 

"No  reference,  therefore,  can  be  had  to  the  original  statutes,  to  control 
the  construction  of  any  section  of  the  Revised  Statutes,  when  the  mean- 
ing is  plain,  although  in  the  original  statutes  it  may  have  had  a  larger  or  more 
limited  application  than  that  given  to  it  in  the  revision."  Deffeback  v.  Hawke, 
115  U.  S.  392,  402,  6  Sup.  Ct.  95,  29  L.  Ed.  423. 

BO  Civ.  Code  Cal.  1901,  §3  1159-1169. 

51  A  location  which  met  federal  requirements,  but  did  not  comply  writh  the 
California  statute,  was  upheld,  because  the  locators  were  in  possession  when 
the  California  statute  was  repealed,  and  remained  in  possession.    Dwinnell  v. 
Dyer,  145  Cal.  12,  78  Pac.  247,  7  L.  R.  A.  (N.  S.)  7G3. 

52  Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426).     See  Copper  Globe 
Min.  Co.  v.  Allman,  23  Utah,  410,  64  Pac.  1019. 

53  Butte  City  Water  Oo.  v.  Baker,  196  U.  S.  119,  25  Sup.  Ct.  211,  49  L.  Ed. 
409 ;  Hickey  v.  Anaconda  Copper  Min.  Co.,  33  Mont.  46.  81  Pac.  806 ;  Mares  v. 
Dillon.  30  Mont.  117,  75  Pac.  963 ;  Wright  v.  Lyons,  45  Or.  167,  77  Pac.  81. 

In  1907  Montana  repealed  its  objectionable  law  and  enacted  a  very  fair  one  in 


22  ORIGIN   AND   HISTORY   OF   AMERICAN   MINING   LAW.  (Ch.  1 

The  various  classes  of  state  legislation  will  be  taken  up  when  we 
reach  the  proper  topics  in  the  main  body  of  the  book;  but  a  very  in- 
teresting classification  of  state  legislation  has  been  made  by  Mr.  Lind- 
ley,  and  should  be  stated  here.  He  has  two  groups :  (a)  Proper  state 
legislation;  and  (b)  doubtful  state  legislation.54 

Under  group  (a)  which  consists  of  matters  of  legislation  "unques- 
tionably proper  within  certain  limits,"  he  classifies :  (1)  Length  of  lode 
claims.  (2)  Width  of  lode  claims.  (3)  Posting  notices  of  location. 
(4)  Contents  of  notices  and  certificates  of  location.  (5)  Recording  no- 
tices and  certificates  of  location.  (6)  Posting  certificate  of  recorder  to 
the  fact  that  the  location  certificate  is  recorded.  (7)  Authorizing 
amended  locations  and  amended  location  certificates.  (8)  Marking  of 
boundaries  and  defining  the  character  of  posts  and  monuments.  (9) 
Requiring  sinking  of  discovery  shaft  or  its  equivalent  prior  to  comple- 
tion of  location.  (10)  Requiring  affidavit  of  sinking  discovery  shaft  or 
its  equivalent  to  be  attached  to  and  recorded  with  the  notice  of  loca- 
tion. (11)  Fixing  time  within  which  location  shall  be  completed  after 
discovery.  (12)  Providing  for  the  manner  of  relocating  abandoned 
claims.  (13)  Amount  of  annual  work.  (14)  Posting  notice  that  annual 
or  development  work  is  in  progress.  (15)  Authorizing  the  recording 
of  affidavits  of  performance  of  annual  labor.  (16) .  Prescribing  man- 
ner of  organizing  mining  districts.  (17)  Authorizing  survey  of  claim 
to  be  made  by  deputy  mineral  surveyor,  and,  when  recorded,  to  become 
a  part  of  the  location  certificate,  and  become  prima  facie  evidence  as  to 
all  facts  therein  contained.  (18)  Manner  of  locating  tunnel  claims  and 
length  allowed  on  discovered  lode.  (19)  Manner  of  locating  mill  sites 
and  area  allowed  therefor. 

Under  group  (b),  which  consists  of  matters  of  legislation  "either 
clearly  obnoxious  to  the  federal  law  or  open  to  criticism  as  being  in- 
effectual," he  classifies:  (1)  Laws  giving  a  locator  the  right  to  all 
lodes  which  have  their  tops  or  apex  within  the  location,  and  defining 
the  extralateral  right.  (2)  Laws  defining  the  rights  of  parties  in  cases 
of  lodes  crossing  or  uniting.  (3)  Laws  determining  the  rights  of  lo- 
cators of  two  crevices  found  to  be  the  same  lode.  (4)  Laws  prohibiting 
the  proprietor  of  a  mining  claim  from  pursuing  his  vein  on  its  strike 

its  place,  which  even  made  valid  previous  locations  which  complied  with  the 
new  act,  If  no  intervening  rights  of  third  persons  were  affected.  Laws  Mont. 
1907,  pp.  18-23.  But  in  the  same  year  Nevada  reaffirmed  by  amendment  its 
harsh  legislation,  which  really  sets  a  trap  for  the  unwary.  Laws  Nev.  1907,  pp. 
418-421.  The  Nevada  act  of  1907  seems  to  have  the  great  merit,  however,  of 
curing  all  defects  in  previous  records  of  locations  not  already  taken  advantage 
of  by  third  persons.  Id.  It  is  to  be  hoped  that  Nevada  and  Oregon  will  follow 
Montana  in  adopting  a  reasonable  statute  on  mining. 
B*  1  Lindley  on  Mines  (2d  Ed.)  §§  250,  251. 


§  5)  SUPPLEMENTAL,    DISTRICT   RULES,  ETC.  .     23 

beyond  vertical  planes  drawn  through  surface  boundaries.  (5)  Laws 
requiring  verification  of  location  certificates  by  oath.  (6)  Laws  pro- 
viding methods  for  forfeiting  estate  of  delinquent  co-owner.  (7)  Laws 
specifying  the  character  of  deposits  which  may  be  located  under  the 
placer  laws. 

It  would  seem  as  if  Mr.  Lindley  made  a  mistake  in  not  putting  (b> 
(5)  under  (a).55  The  requirement  of  the  verification  of  location  cer- 
tificates by  oath  seems  legally  unobjectionable. 

The  various  states  have  legislated,  also,  in  regard  to  drainage,  ease- 
ments, rights  of  way,  mining  corporations,  etc. ;  but,  with  the  exception 
just  noted,  the  strictly  mining  code  provisions  have  been  well  classified 
by  Mr.  Lindley  as  set  forth  above.* 


SUPPLEMENTAL,    DISTRICT    RULES,    REGULATIONS,    AND    CUS- 
TOMS. 

5.  The  so-called  common  law  of  mining  in  America,  which  consists 
of  the  local  mining  district  rules,  regulations,  and  customs, 
has  had  a  continually  decreasing  importance,  because  of  the 
increasingly  greater  range  of  state  legislation.  The  district 
rules,  regulations,  and  customs  have  shaped  the  federal  and 
state  statutes,  and  in  some  localities  even  to-day  they  are  of 
considerable  importance.  Such  rules,  regulations,  and  customs 
are  valid,  if  they  are  reasonable,  if  they  are  actually  in  force, 
and  if  they  do  not  conflict  with  either  state  or  federal  legis- 
lation. 

A  very  important  effect  of  state  legislation  has  been  the  way  it  has 
tended  to  supersede  district  mining  rules  and  regulations.  Under  the 
act  of  1872  such  rules  and  regulations  must  be  consistent,  not  only  with 
Congressional  legislation,  but  also  with  the  supplemental  state  legisla- 
tion.58 There  is  a  tendency  on  the  part  of  mining  law  writers  to  slight 
the  subject  of  district  mining  rules,  just  because  in  so  many  of  our 

65  See  Butte  City  Water  Co.  v.  Baker,  196  U.  S.  119,  25  Sup.  Ct.  211,  49  L. 
Ed.  409. 

*  The  last  Nevada  Legislature  has  passed  an  act  which  seems  to  be  uncon- 
stitutional. It  provides  for  the  location  of  minerals  in  unfenced  and  unim- 
proved privately  unowned  land,  of  which  the  legal  owner  is  to  be  deprived  on 
being  paid  a  compensation  based  on  the  value  of  the  land  to  him  without  con- 
sidering the  minerals.  Sess.  Laws  Nev.  1907,  pp.  140,  141. 

Be  Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426) ;  Jupiter  Min.  Co. 
v.  Bodie  Consol.  Min.  Co.  (C.  C.)  11  Fed.  666 ;  Original  Company  of  the  Williams 
&  Kellinger  v.  Winthrop  Min.  Co.,  60  Cal.  631 ;  Woodruff  v.  North  Bloomfield 
Gravel  Min.  Co.  (C.  C.)  18  Fed.  753,  9  Sawy.  441.  A  state  statute  requiring 
mining  district  recorders  to  deliver  their  records  to  the  proper  county  recorders 
was  upheld  in  Re  Monk,  16  Utah,  100,  50  Pac.  810. 


24  ORIGIN   AND   HISTORY   OF  AMERICAN   MINING   LAW.  (Ch.  1 

mining  law  states  such  rules  have  practically  been  supplanted  by  elabo- 
rate mining  codes ;  but  when  it  is  remembered  that  in  Utah  and  Wyo- 
ming something,  and  in  Arkansas  and  Alaska  still  more,  is  left  to 
district  mining  rules,  that  in  California  practically  everything  that  the 
state  Legislature  could  require  is  so  left,  that  under  some  of  the  min- 
ing codes  considerable  room  still  exists  for  district  rules  as  to  placer 
mining  claims,  and  that  other  states  may  some  day  follow  California  by 
repealing  their  mining  statutes,  these  district  rules  are  seen  to  have 
such  an  actual  and  potential  value,  in  addition  to  their  historical  signifi- 
cance, that  it  is  only  right  to  give  them  careful  attention.57 

Mining  districts  were,  and  so  far  as  they  exist  to-day  are,  terri- 
torial divisions,  varying  in  size  according  to  the  needs  and  notions  of 
tlfeir  organizers.  It  is  almost  invariably  the  rule  to  describe  a  mining 
claim  in  a  conveyance  as  situated  in  such  and  such  a  mining  district. 
""Where  land  office  or  other  forms  contain  a  blank  for  the  name  of.  the 
mining  district,  and  no  district  has  ever  been  formed,  it  is  usual  to  fill 
such  blank  with  the  word  'unorganized/  And  there  is  no  doubt  that  a 
mining  district  may  exist  to  the  extent  of  giving  a  name  to  a  locality, 
*  *  *  and  such  name,  when  adopted  by  common  consent,  is  as  valid 
as  if  adopted  at  a  district  meeting."  58  Mining  districts  have  been 
well  described  by  the  authority  just  quoted  as  "quasi  municipal  organi- 
zations." 59 

District  rules  had  a  much  wider  range  before  congressional  legis- 
lation than  they  have  had  since ;  for,  under  the  acts  of  Congress,  dis- 
trict rules  may  relate  to  "the  location,  manner  of  recording,  [and] 
amount  of  work  necessary  to  hold  possession  of  a  mining  claim,"  60 
subject  to  the  requirements  of  Congress  about  marking  the  location, 
about  the  contents  of  a  record  (if  one  is  required  by  district  rules  or  by 
state  legislation),  and  about  not  less  than  $100  worth  of  labor  or  im- 
provements being  put  on  each  claim  each  year.  Prior  to  the  federal 
statutes,  the  rules  and  regulations  of  miners  were  free  from  restric- 
tions, except  such  as  were  imposed  by  state  statutes,61  and  it  is  a  ques- 
tion how  far  the  latter  were  valid.  Since  the  acts  of  Congress,  the  dis- 


57  It  seems  as  if,  under  Act  Jan.  31,  1901,  c.  186,  31  Stat.  745  (U.  S.  Comp. 
St.  1901,  p.  1435),  there  is  considerable  room  in  states  where  salt  abounds  for 
district  mining  rules  as  to  salt  claims. 

BS  Morrison's  Mining  Rights  (13th  Ed.)  p.  5. 

59  Morrison's  Mining  Rights  (13th  Ed.)  p.  4.  An  attempted  organization  of 
a  mining  district  by  two  miners  in  the  presence  of  three  Indians  who  did  not 
understand  English  was  held  insufficient  in  Fuller  v.  Harris  (D.  C.)  29  Fed.  814. 

eo  Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426). 

6i  Compare  Glacier  Mountain  Silver  Min.  Co.  v.  Willis,  127  U.  S.  471,  8  Sup. 
Ct.  1214,  32  L.  Ed.  172. 


§  5)  SUPPLEMENTAL   DISTRICT   RULES,  ETC.  25 

trict  rules  have  been  able  to  affect  only  those  matters  not  disposed  of 
by  the  state  and  federal  legislation. 

With  reference  to  district  rules,  wherever  such  rules  are  material, 
the  courts  have  adopted  a  liberal  policy.  The  courts  will  not  take  ju- 
dicial notice  of  district  mining  regulations  and  customs,  for  "to  say  that 
the  court  is  advised  as  to  the  nature  and  extent  of  such  regulations  is 
contrary  to  the  fact,  and  therefore  they  cannot  be  the  subject  of  judi- 
cial notice."  62  But  such  regulations  may  be  shown  to  exist  by  custom 
or  usage,  even  if  their  enactment  is  irregular.63  A  valid  district  rule 
need  not  be  found  among  the  written  rules  of  the  district  before  it  can 
be  proved;  for  a  custom  which  is  reasonable,  and  which  is  recognized 
and  followed  by  the  miners,  will  prevail  against  an  obsolete  written 
mining  regulation.64  The  existence  or  nonexistence  of  a  mining  dis- 
trict regulation  or  custom  is,  of  course,  a  question  of  fact  for  the 
jury; 65  but  the  courts  are  liberal  in  allowing  evidence  of  custom  to  go 
to  the  jury,  and  here,  as  elsewhere,  the  courts  do  all  that  they  can  to 
give  effect  to  reasonable  mining  customs.  A  mining  regulation  adopt- 
ed at  a  miners'  meeting  "does  not,  like  a  statute,  acquire  validity  by  the 
mere  enactment,  but  from  the  customary  obedience  and  acquiescence 
of  the  miners  following  its  enactment.  It  is  void  whenever  it  falls  into 
disuse  or  is  generally  disregarded.  It  must  not  only  be  established,  but 
in  force.  A  custom,  reasonable  in  itself  and  generally  observed,  will 
prevail,  as  against  a  written  mining  law  which  has  fallen  into  disuse. 
It  is  a  question  of  fact  for  the  jury  whether  the  law  is  in  force  at  any 
given  time."  66 

The  Idaho  court,  in  considering  a  district  requirement  that  placer 
claims  should  be  no  more  than  80  rods  in  length,  .said :  "Rules  and 
customs  of  miners,  reasonable  in  themselves  and  not  in  conflict  with  any 
higher  law,  have  long  been  recognized  and  sanctioned  by  legislative 
enactments  and  judicial  decisions.  That  such  rules  may  still  be  adopt- 
ed and  enforced  as  part  of  the  law  of  this  country  is  too  well  settled 
to  admit  of  argument.  We  cannot  see  that  the  custom  in  question  in 

62  Hallett,  C.  J.,  in  Sullivan  v.  Hense,  2  Colo.  424,  429,  430.  See  Perigo  v. 
Erwin  (C.  C.)  85  Fed.  904 ;  Poujade  v.  Ryan,  21  Nev.  449,  33  Pac.  659. 

es  Gore  v.  McBrayer,  18  Cal.  582;  Flaherty  v.  Gwinn,  1  Dak.  509;  Colman 
v.  Clements,  23  Cal.  245. 

e*  Harvey  v.  Ryan,  42  Cal.  626.  See  Jupiter  Min.  Co.  v.  Bodie  Consol.  Min. 
Co.  (C.  C.)  11  Fed.  666;  North  Noonday  Min.  Co.  v.  Orient  Min.  Co.  (C.  C.) 
1  Fed.  522,  6  Sawy.  299. 

es  Harvey  v.  Ryan,  42  Cal.  626.  In  the  absence  of  proof  of  miner's  rules, 
it  will  be  presumed  that  locations  are  governed  simply  by  the  state  and  fed- 
eral statutes.  Anderson  v.  Caughey,  3  Cal.  App.  22,  84  Pac.  223. 

ee  Harvey  v.  Ryan,  42  Cal.  626.  See  Haws  v.  Victoria  Copper  Min.  Co.,  160 
U.  S.  303,  317,  318,  16  Sup.  Ct.  282,  40  L.  Ed.  436 ;  Jupiter  Min,  Co.  V.  Bodie 
Consol.  Min.  Co.  (C.  C.)  Ill  Fed.  666,  7  Sawy.  96. 


26  ORIGIN   AND   HISTORY   OF  AMERICAN   MINING   LAW.          (Ch.  1 

any  way  conflicts  with  either  the  acts  of  Congress  or  the  laws  of  the 
territory;  but,  on  the  contrary,  we  think  the  custom  a  reasonable  one 
and  entirely  in  harmony  with  the  spirit  of  the  mining  laws."  67 

So  long  as  the  customs  are  shown  actually  to  exist,  to  be  acquiesced 
in,  and  to  be  reasonable,  and  are  further  found  not  to  be  in  conflict 
with  state  or  national  laws  and  Constitutions,  they  must  be  complied 
with.  Once  proved  to  exist,  regulations  are  presumed  to  continue  to 
exist,  if  the  contrary  is  not  shown.68  They  need  not  exist  at  all,  of 
course,  for  a  good  mining  title  to  be  made  out,69  unless  the  title  in  fact 
depends  upon  them.70 

There  is  nothing  peculiar  about  the  proof  of  mining  rules  and  cus- 
toms, and  they  are  to  be  shown  in  evidence  in  the  same  way  as  other 
written  rules  and  unwritten  customs.  "The  mode  of  proof,  of  course, 
is  governed  by  the  ordinary  rules  of  evidence,  and  it  would  seem,  from 
the  weight  of  authority  and  reason,  that  mining  district  rules  or  regula- 
tions upon  a  particular  point  must  be  offered  in  evidence  as  a  whole, 
must  be  proven  by  the  best  evidence,  and  must  be  proved  by  the  books 
themselves  properly  produced,  if  there  are  books,71  or  by  the*  production 
of  such  other  paper  evidence  as  there  may  be  of  their  existence.  If 
there  are  no  books,  and  the  rules  are  not  in  writing,  they  may,  of 
course,  be  proved  by  any  competent  evidence,  the  same  as  any  other 
fact.  The  land  department  accepts  proof  of  mining  district  rules  by  a 
certified  copy  of  the  rules  or  by-laws,  attested  by  the  seal  of  the  dis- 
trict, and  the  seal  of  the  recorder  or  other  legal  custodian.72  If  no 
proof  is  made  of  a  custom  or  by-law  upon  a  given  point,  the  court  will 
assume,  for  the  purposes  of  the  trial,  that  none  exists."  7S  Where 


«7  ROSENTHAL  v.  IVES,  2  Idaho  (Hasb.)  265, 12  Pac.  904.  That  prior  to  the 
act  of  1866  mining  district  rules  could  limit  a  claim  to  25  feet,  see  Prosser  v. 
Parks,  18  Gal.  47. 

es  Riborado  v.  Quang  Pang  Min.  Co.,  2  Idaho  (Hasb.)  144,  6  Pac.  125. 

e»  Golden  Fleece  Gold  &  Silver  Min.  Co.  v.  Cable  Consol.  Gold  &  Silver  Min. 
Co.,  12  Nev.  312. 

70  Sears  v.  Taylor,  4  Colo.  38. 

71  Orr  v.  Haskell,  2  Mont.  225.    That  a  district  record,  kept  in  a  pocket  di- 
ary, is  no  record,  see  Fuller  v.  Harris  (D,  C»)  29  Fed.  814. 

72  The  Idaho  court  has  held  that  in  Idaho  there  cannot  be  a  deputy  district 
mining  recorder.     Van  Buren  v.  McKinley,  8  Idaho,  93,  66  Pac.  936.     In  ap- 
lications  for  patent,  the  land  department  has  power  to  decide  what  district 
rules  and  regulations  are  in  force.     Parley's  Park  Silver  Mining  Co.  v.  Kerr, 
130  U.  S.  256,  9  Sup.  Ct.  511,  32  L.  Ed.  906. 

731  Snyder  on  Mines,  §  126,  citing,  on  manner  of,  proof,  English  v.  Johnson, 
17  Oal.  107,  76  Am.  Dec.  574;  Roberts  v.  Wilson,  1  Utah,  292;  Campbell  v. 
Rankin,  99  U.  S.  261,  25  K  Ed.  435;  Pralus  v.  Pacific  Gold  &  Silver  Min.  Co., 
35  Cal.  30;  Doe  v.  Waterloo  Min.  Co.,  70  Fed.  455,  17  C.  O.  A.  190;  St.  John 
v.  Kidd,  26  Cal.  263. 


§  5)  SUPPLEMENTAL  DISTRICT   RULES,  ETC.  27 

there  is  a  question  as  to  whether  mining  district  rules  actually  are  in 
force,  both  the  written  rules  and  parol  proof  of  the  mining  customs  of 
the  district  will  be  received  in  evidence.74 

It  is  desirable  to  notice  some  of  the  district  rules  and  customs  which 
have  been  held  to  be  void.  A  custom  which  authorized  persons  en- 
gaged in  mining  to  encroach  upon  and  take  away  the  rights  of  the 
owners  of  land  which  is  not  mineral  and  which  is  not  in  a  mineral 
region  would  be  invalid.75  A  rule  which  attempts  to  restrict  the 
size  of  a  claim  located  before  its  adoption  is  void  as  to  such  claim,76 
though  a  rule  requiring  increased  annual  labor  in  future  seems  to  be 
valid.77  So  a  mining  rule  cannot  limit  the  number  of  claims  a  person 
may  buy; 78  nor  can  it  provide  that  a  given  number  of  days'  work  shall 
amount  to  the  $100  required  by  the  United  States  statute  as  annual 
labor;79  nor  can  it  authorize  the  location  of  a  mill  site  on  mineral 
land.80  So  it  has  been  held  that  a  mining  rule  requiring  the  annual 
labor  to  be  done  every  60  days  is  invalid; 81  but  the  United  States  Cir- 
cuit Court  of  Appeals  for  the  Ninth  Circuit  has  decided  that  a  mining 
regulation  requiring  a  shaft  to  be  sunk  to  a  depth  of  10  feet  within  90 
days  of  location,  the  shaft  seemingly  being  a  part  of  the  first  year's  an- 
nual labor,  and  not  a  part  of  the  location,  is  valid ; 82  and  it  seems  clear 
that  the  states,  or,  if  they  do  not  act,  then  the  mining  districts,  may  in- 
crease the  amount,  and,  if  so,  the  frequency,  of  the  annual  labor.83 
An  Alaska  case  holds  that  a  mining  district  rule  cannot  limit  a  time 
for  record  less  than  the  90  days  allowed  by  the  federal  statute  ap- 
plicable to  Alaska.84 

On  the  effect  of  a  noncompliance  with  district  rules  there  has  been 
controversy.  If  the  rule  is  legal,  and  expressly  provides  that  noncom- 

74  Colman  v.  Clements,  23  Cal.  245.     See  Leet  v.  John  Dare  Silver  Min.  Co. 
6  Nev.  218. 

75  Woodruff  v.  North  Bloomfleld  Gravel  Min.  Co.  (C.  C.)  18  Fed.  753,  9  Sawy. 
441. 

76  Table  Mt  Tunnel  Co.  v.  Stranahan,  21  Cal.  548;   Id.,  31  Cal.  387.    A  min- 
ing district  rule  requiring  all  placers  to  be  of  a  specific  form  was  held  void  in 
Price  v.  Mclntosh,  1  Alaska,  286. 

if  Strang  v.  Ryan,  46  Cal.  33. 

™  Prosser  v.  Parks,  18  Cal.  47. 

79PENN  v.  OLDHAUBER,  24  Mont.  287,  61  Pac.  649;  WOODY  v.  BER- 
NARD, 69  Ark.  579,  65  S.  W.  100. 

so  Oleary  v.  Skiffich,  28  Colo.  362-,  65  Pac.  59,  89  Am.  St.  Rep.  207. 

si  ORIGINAL  COMPANY  OF  THE  WILLIAMS  &  KELLIGER  v.  WIN- 
THROP  MIN.  CO.,  60  Cal.  631.  See  Johnson  v.  McLaughlin,  1  Ariz.  493,  500, 
4  Pac.  130. 

82  NORTHMORE  v.  SIMMONS,  97  Fed.  386,  38  C.  C.  A.  211. 

ss  Northmore  v.  Simmons,  97  Fed.  386,  38  C.  C.  A.  211;  Sisson  v.  Sommers, 
24  Nev.  379,  388,  55  Pac.  829,  77  Am.  St.  Rep.  815 ;  Strang  v.  Ryan,  46  Cal.  33. 

s*  Butler  v.  Good  Enough  Min.  Co.,  1  Alaska,  246. 


28  ORIGIN   AND   HISTORY   OF   AMERICAN    MINING   LAW.  (Ch.  1 

pliance  shall  work  a  forfeiture,  no  one  doubts  that  a  forfeiture  may  re- 
sult ;  but  the  dispute  arises  where  the  rule  does  not  fix  a  penalty  for  its 
violation.  The  California  court  early  held  that  the  failure  of  a  party  to 
comply  with  a  mining  rule  or  regulation  cannot  work  a  forfeiture,  un- 
less the  rule  itself  provides  that  forfeiture  shall  follow  noncompliance 
with  it,  and  that  has  remained  the  California  rule.85  This  California 
rule  has  been  adopted  in  Arizona  86  and  in  one  United  States  Circuit 
Court  decision,87  and  seems  to  be  favored  by  one  Dakota  case.88  On 
the  other  -hand,  the  Montana  Supreme  Court,  though  giving  the  Cali- 
fornia cases  careful  consideration,  declares  that  the  regulations  of 
miners  are  like  conditions  subsequent  in  deeds,  and,  as  in  the  case  of 
such  conditions  subsequent,  a  failure  to  comply  with  them  works  a 
forfeiture.89  The  analogy  of  a  condition  subsequent  is,  however,  only 
an  analogy;  for  as  to  ordinary  realty  it  is  the  grantor  who  imposes 
such  conditions,  whereas  the  mining  district  is  not  a  grantor  of  mining 
claims,  and,  besides,  a  condition  subsequent  as  to  ordinary  realty  can  be 
reserved  only  to  the  grantor  and  his  heirs,  and  they  alone  have  the 
right  to  enter  for  breach,  whereas  in  the  case  of  a  mining  claim  the 
one  to  enter  is  a  new  locator.  While  the  Montana  court  might  still 
insist  on  the  analogy  on  the  theory  that  the  United  States,  through  the 
mining  district,  imposes  the  condition  for  itself  and  its  citizens,  and 
that  the  United  States,  through  the  new  locator,  makes  the  entry  for 
breach  of  condition,  or  else,  as  a  sovereign  grantor,  rightfully  reserves 
a  condition  to  third  persons,  the  real  question  is  what  view  a  court, 
wishing  to  deal  fairly  with  the  mining  district  rules,  as  the  spirit  and 
•the  letter  of  the  mining  acts  require  the  court  to  do,  should  take  as  to 
forfeiture.  On  the  one  side,  it  may  be  argued :  "If  the  district  wants 
a  forfeiture  to  result,  let  it  say  so."  On  the  other  side,  it  may  be  said : 
"Unless  you  say  that  a  forfeiture  results,  you,  nullify  the  district  resolu- 
tions." Perhaps  the  best  way  out  is  frankly  to  admit  that  in  the  early 
days  the  Montana  rule,  which  is  also  followed  in  Nevada,90  was  fairer 

ssMcGARRITY  v.  BYINGTON,  12  Cal.  427;  English  v.  Johnson,  17  Cal. 
108,  117,  76  Am.  Dec.  574 ;  Bell  v.  Red  Rock  Tunnel  &  Mining  Co.,  36  Cal.  214 ; 
EMERSON  v.  McWHIRTER,  133  Cal.  510,  65  Pac.  1036. 

s«  JOHNSON  v.  MCLAUGHLIN,  1  Ariz.  493,  4  Pac.  ISO;  Rush  v.  French, 
1  Ariz.  99,  25  Pac.  816. 

ST  Jupiter  Min.  Co.  v.  Bodie  Consol.  Min.  Co.  (C.  C.)  11  Fed.  666,  7  Sawy. 
96,  117. 

ss  See  Flaherty  v.  Gwinn,  1  Dak.  509,  511,  where  the  court  says  that  mining 
regulations  "must  impose  an  obligation  to  do  some  certain  and  specific  act 
which,  if  not  complied  with,  wil>,  by  the  terms  of  the  rule,  deprive  the  locator 
of  some  right" 

89  KING  v.  EDWARDS,  1  Mont.  235.  See  Purdum  v.  Laddin,  23  Mont.  387, 
59  Pac.  153. 

»o  Mallett  v.  Uncle  Sam  Gold  &  Silver  Min.  Co.,  1  Nev.  188,  90  Am.  Dec.  484; 


§  6)  THE   ATTITUDE   OF   THE   COURTS   TOWARD   THE  MINER.  29 

to  the  miners  and  was  the  one  to  be  adopted,  but  that  to-day,  owing  to 
the  restricted  field  of  mining  district  rules  and  the  relatively  unimport- 
ant things  about  which  alone,  in  most  states,  mining  districts  may  legis- 
late, the  California  and  Arizona  rule  is  best.  The  United  States  Su- 
preme Court  has  recently  refused  to  go  out  of  its  way  to  decide  the 
question.f 


THE  ATTITUDE  OF  THE  COURTS  TOWARD  THE  MINER. 

6.     The  courts  construe  and  enforce  the  mining  statutes  with  as  lit- 
tle technicality  as  possible. 

In  closing  this  historical  sketch,  it  is  highly  desirable  to  say  a  word 
about  the  attitude  of  the  courts  towards  mining  rights.  There  is  much 
in  the  cases  which  may  seem  strange  to  one  who  does  not  know  the 
atmosphere  of  mining  camps.  The  courts  that  have  had  to  pass  on 
mining  cases  have  known  that  they  had  to  fix  the  rights  of  typical 
frontiersmen,  often  unlettered  immigrants,  certainly  few  of  them  learn- 
ed in  the  law,  and  the  most  of  them  actually  in  the  early  days  shunning 
and  denouncing  lawyers ;  and  those  courts  have  realized  that  Congress, 
in  approving  the  rules  and  regulations  of  the  miners  enacted  in  their 
miners'  meetings,  spoke  in  favor  of  the  adoption  of  the  miners'  point 
of  view.  The  result  has  been  that  the  courts  allow  as  much  as  may  be 
to  hang  on  the  good  faith  of  the  miner.  As  Mr.  Charles  J.  Hughes, 
Jr.,  whom  we  have  already  quoted,  so  well  says :  "Many  controversies 
arise  as  to  whether  or  not  a  discovery  has  been  made ;  whether  or  not 
the  necessary  work  has  been  done,  stakes  set ;  whether  the  location  cer- 
tificate is  in  proper  form,  properly  recorded;  whether  or  not  the  vein 
pursues  the  proper  course  within  the  boundaries  of  the  claim,  or  has 
its  apex  therein;  whether  or  not  the  vein  is  continuous  in  its  descent 
into  the  earth — and  upon  each  and  every  of  these  questions  in- 
numerable litigations  have  arisen,  which  have  taxed  the  wisdom  of 
the  courts,  the  ingenuity  of  the  lawyers,  and  the  learning  and  skill  of 
experts  and  miners  in  their  presentation.  The  principle  followed  by  the 
courts,  however,  in  their  construction  of  the  law,  has  been  to  give  it  a 
practicable  interpretation,  in  view  of  the  fact  that  the  prospector  and 
locator  of  claims  is  to  be  governed  by  it,  and  that  he  cannot  be  attend- 
ed, in  his  explorations,  by  a  lawyer  to  construe  the  law,  a  surveyor  to 
determine  the  boundaries  and  position  of  his  claim,  and  assayers  and 

OreamuDo  v.  Uncle  Sam  Gold  &  Silver  Min.  Co.,  1  Nev.  215;   SISSON  v.  SOM- 
MERS,  24  Nev.  379,  55  Pac.  829,  77  Am.  St.  Rep.  815. 

tYosemite  Gold  Mining  &  Milling  Co.  v.  Emerson,  208  U.  S.  25,  28  Sup.  Ct. 
196,  52  L.  Ed.  


30  ORIGIN   AND   HISTORY   OF  AMERICAN   MINING   LAW.  (Ch.  1 

geologists  to  give  him  the  result  of  their  operations  and  the  character 
of  the  formation  in  which  he  is  working,  all  of  which  would  be  neces- 
sary, if  some  of  the  contentions  urged  against  the  validity  of  locations 
should  be  by  the  courts  sustained.  A  liberal  spirit  has  been  adopted 
generally  in  these  decisions,  sustaining  good  faith  and  honest  effort 
to  comply  with  the  law,  and  an  avoidance  of  technical  defects  to  meri- 
torious claims,  while  at  the  same  time  requiring  a  fair,  honest,  and 
substantial  compliance  with  the  terms  upon  which  the  general  govern- 
ment extends  its  bounty  to  the  prospector  and  locator."  91 

In  noticing  the  general  attitude  of  the  courts  as  above  set  forth,  we 
must  also  bear  in  mind  certain  rules  of  statutory  construction  applicable 
to  American  mining  law.  They  are  stated  by  Mr.  Lindley  as  follows : 
"(1)  The  mining  laws  are  to  be  read  in  the  light  of  matters  of  public 
history,  relating  to  the  mineral  lands  of  the  United  States.  (2)  Where 
a  statute  operates  as  a  grant  of  public  property  to  an  individual,  or  the 
relinquishment  of  a  public  interest,  that  construction  should  be  adopt- 
ed which  will  support  the  claim  of  the  government,  rather  than  that 
of  the  individual.  (3)  In  the  case  of  a  doubtful  or  ambiguous  law, 
the  contemporaneous  construction  of  those  who  have  been  called  upon 
to  carry  it  into  effect  is  entitled  to  great  respect,  and  ought  not  to  be 
overruled  without  cogent  reasons.  We  might  add  a  fourth  rule,  de- 
ducible  from  the  foregoing  and  from  the  current  of  American  au- 
thority and  decisions  of  the  land  department,  and  that  is  that  the 
word  'mineral/  as  used  in  these  various  acts,  should  be  understood  in 
its  widest  signification."  9* 

»i  24  Am.  Bar  Ass'n  Rep.  (1901)  pp.  349,  350. 
02  1  Lindley  on  Mines  (2d  Ed.)  §  96. 


§  8)         MINING  LAW  STATUS  OF  STATES  AND  TERRITORIES,  ETC.  31 


CHAPTER  II. 

THE  MINING  LAW  STATUS  OF  THE  STATES,  TERRITORIES,  AND  POS- 
SESSIONS  OF   THE   UNITED    STATES., 

7.  The  Mining  Law  States  ai*d  Territories. 

8.  The  Mineral  Land  History  of  the  United  States. 

9.  The  Mining  Law  Status  of  the  Several  States  and  Territories. 


THE  MINING  LAW  STATES  AND  TERRITORIES. 

7.  American  mining  law  applies  to  Alaska,  Arizona,  Arkansas,  Cali- 

fornia, Colorado,  Idaho,  Montana,  Nevada,  New  Mexico,  North 
Dakota,  Oregon,  the  Philippine  Islands,  South  Dakota,  Utah, 
Washington,  and  Wyoming.  It  applies  also  to  certain  land  in 
Oklahoma. 

Those  parts  of  the  public  domain  which  the  mining  laws  affect  form 
but  a  comparatively  small  portion  of  the  lands  comprised  within  the 
United  States  and  its  territorial  possessions,  and  to-day  they  consist 
of  Alaska,1  Arizona,  Arkansas,  California,  Colorado,  Idaho,  Montana, 
Nevada,  New-  Mexico,  North  Dakota,  Oregon,  the  Philippine  Islands,2 
South  Dakota,  Utah,  Washington,  and  Wyoming.  Parts  of  Oklahoma 
are  also  subject  to  those  laws. 

THE  MINERAL  LAND  HISTORY  OF  THE  UNITED  STATES. 

8.  The  land  history  of  the  United  States  reveals  that  parts  of  the 

United  States  have  never  been  subject  to  the  American  min- 
ing law,  because: 

(a)  The  United  States  never  owned  any  mineral  land  in  the  thirteen 
original  states,  nor  in  the  states  of  Kentucky,  Maine,  Ver- 
mont, and  West  Virginia,  created  out  of  them,  nor  in  Texas. 

1  Alaska  mining  is  regulated  under  special  acts.     Act  June  6,  1900,  c.  786, 
31  Stat  321 ;    Act  June  6,  1900,  c.  796,  31  Stat.  658  (U.  S.  Comp.  St.  1901,  p. 
1441) ;   Act  June  13,  1902,  c.  1082,  32  Stat.  385 ;   Act  April  28,  1904,  c.  1772,  33 
Stat  525  (U.  S.  Comp.  St.  Supp.  1907,  p.  479) ;  Act  March  2,  1907,  c.  2559,  34 
Stat.  1243  (U.  S.  Comp.  St.  Supp.  1907,  p.  476) ;  Act  May  28,  1908  (quoted 
in  37  Land  Dec.  Dep.  Int  Adv.  Sheets,  22).     By  Act  May  17,  1884,  c.  53,  23 
Stat.  24,  the  mineral  laws  of  the  United  States  were  extended  to  Alaska.    Mey- 
denbauer  v.  Stevens  (D.  C.)  78  Fed.  787;  Revenue  Min.  Co.  v.  Balderston,  2 
Alaska,  363. 

2  A  separate  elaborate  mining  code  has  been  provided  for  the  Philippines. 
Act  July  1,  1902,  c.  1369,  32  Stat.  697,  amended  by  Act  Feb.  6,  1905,  c.  453,  33 
Stat.  692.     It  has  been  supplemented  by  acts  of  the  Philippine  Commission. 
S«e  Appendix. 


32  MINING  LAW  STATUS  OF  STATES  AND  TERRITORIES,  ETC.       (Ch.  2 

(b)  In  the  other  states  and  territories,  not  subject  to  American 
mining  law,  either  there  were  no  mineral  lands,  or  such  lands 
were  disposed  of  prior  to  the  creation  of  American  mining 
law,  or  under  express  statutory  exception  from  that  law. 

The  simplest  way  to  explain  why  land  in  a  given  state  or  territory 
is  or  is  not  subject  to  the  mining  laws  is  to  look  at  the  history  of  that 
state  or  territory.  Before  taking  up  individual  states  and  territories, 
however,  a  few  preliminary  words  are  needed  about  the  general  ter- 
ritorial acquisitions  of  the  United  States. 

The  Thirteen  Original  States. 

The  thirteen  original  states  of  the  Union,  namely,  Connecticut,  Dela- 
ware, Georgia,  Maryland,  Massachusetts  New  Hampshire,  New  Jersey, 
New  York,  North  Carolina,  Pennsylvania,  Rhode  Island,  South  Caro- 
lina, and  Virginia,  so  far  as  concerns  the  land  within  their  present 
boundaries,  were  never  affected  by  the  mining  or  other  land  statutes 
of  the  United  States ;  for  no  part  of  the  land  within  such  boundaries, 
other  than  sites  for  federal  buildings,  forts,  etc.,  ever  belonged  to 
the  United  States.  These  thirteen  original  states  embraced  within 
their  conceded  boundaries  lands  which  afterwards,  with  the  consent 
of  the  interested  states,  were  erected  into  separate  states,  and  these 
latter  states,  namely,  Kentucky,  Maine,  Vermont,  and  West  Virginia, 
like  the  parent  states,  were  never  subject  to  the  United  States  mining 
laws.  So,  too,  the  District  of  Columbia  has  never  been  subject  to  the 
mining  laws. 

The  thirteen  original  states  also  claimed  during  the  Confederation 
large  tracts  of  land  to  the  west  and  north  of  their  present  boundaries, 
but  during  the  Confederation  and  later  they  made  various  cessions  of 
such  lands  to  the  United  States.  Taking  these  cessions  in  their  natural 
order  for  our  special  purposes,  rather  than  in  their  chronological 
order,  we  note  first  that  South  Carolina  in  1787,  North  Carolina  in 
1790,  and  Georgia  in  1798  and  1802,  made  cession  of  part  of  their 
lands  to  the  United  States,  and  these  lands  were  organized  into  two 
territories,  namely,  the  "Territory  South  of  the  Ohio,"  created  in  1790, 
and  the  "Mississippi  Territory,"  created  in  1798.  Out  of  these  south- 
ern territories  and  part  of  Virginia  were  created  the  states  of  Ken- 
tucky, Tennessee,  Mississippi,  and  Alabama.  For  physical  reasons, 
and  also  because  their  lands  were  largely  disposed  of  before  the  min- 
ing laws  developed,  none  of  these  states  have  been  appreciably  affect- 
ed by  the  mining  laws.  As  we  have  just  noted,  Kentucky  never  was 
subject  to  those  laws.  Tennessee  was  formed  out  of  territory  ceded 
to  the  United  States  by  North'  Carolina.  "The  entire  area  of  Tennes- 
see was  public  domain,  but  the  United  States  gave  the  same  to  the 
state,  after  deducting  the  land  necessary  to  fill  the  obligations  in  the 


§  8)  MINEKAL  LAND   HISTORY   OF   THE   UNITED   STATES.  33 

deed  of  cession  of  North  Carolina."  8  The  mineral  lands  in  Alabama 
and  Mississippi  were  by  the  act  of  June  21,  1866,*  expressly  excepted 
from  the  land  laws  applicable  to  those  states.  By  the  act  of  March 
3,  1883, 5  it  was  provided  that  all  public  lands  in  Alabama,  "whether 
mineral  or  otherwise,  shall  be  subject  to  disposal  only  as  agricultural 
lands."  Mississippi  does  not  seem  to  have  had  or  to  have  any  federal 
mineral  lands.6 

During-  the  Confederation,  New  York,  Virginia,  Massachusetts,  and 
Connecticut  ceded  to  the  United  States  the  territory  north  of  the  Ohio 
river,  east  of  the  Mississippi,  and  west  of  Pennsylvania  and  New  York, 
known  as  the  "Northwest  Territory,"  and  governed  under  the  North- 
west Ordinance  of  June  13,  1787.  Even  the  Western  Reserve,  the 
region  within  125  miles  of  Pennsylvania  retained  by  Connecticut,  was, 
on  May  30,  1800,  ceded  as  to  jurisdiction  to  the  United  States.  This 
Northwest  Territory,  out  of  which  were  carved  the  states  of  Illinois, 
Indiana,  Michigan,  Ohio,  and  Wisconsin,  was  subject  to  the  United 
States  land  laws,  and  the  mineral  lands  therein,  consisting  of  coal, 
iron,  lead,  and  copper,  were  first  leased  and  finally  sold  under  special 
laws  prior  to  the  general  mining  legislation.7  Michigan  and  Wiscon- 
sin were  in  1873  expressly  excepted  from  the  operation  of  the  mining 
laws.8 


s  Donaldson,  Public  Domain,  pp.  421-423. 

*  14  Stat.  66,  c.  127. 

B  22  Stat.  487,  c.  118  (U.  S.  Comp.  St.  1901,  p.  1439). 

e  See  Statement  of  Unappropriated  Public  Lands  of  the  United  States,  Is- 
sued by  the  Department  of  the  Interior,  General  Land  Office,  on  July  1,  1906. 

T  See  1  Lindley  on  Mines  (2d  Ed.)  §§  32-35.  "The  general  policy  of  the  Unit- 
ed States,  as  expressed  in  the  statutes,  executive  acts,  and  proclamations  pri- 
or to  1845,  was  to  reserve  the  mineral  lands  from  sale  absolutely.  These  lands, 
so  far  as  then  known,  consisted  of  lead,  iron,  copper,  and  zinc  lands  in  that 
part  of  the  United  States  territory  which  was  then  called  the  Northwest  or 
Indian  Territory,  and  comprised  that  portion  of  the  country  now  embraced 
within  the  states  of  Michigan,  Wisconsin,  Illinois,  Iowa,  Missouri,  and  Min- 
nesota. This  policy  was  trenched  upon  occasionally  by  acts  authorizing  the 
President  of  the  United  States  to  lease  certain  lead  lands.  This  policy  and 
these  acts,  as  might  naturally  be  expected,  were  provocative  of  mischief  and 
endless  disputes.  It  was  impossible  to  collect  the  rents  and  royalties  with 
certainty  or  regularity.  Sales  of  mineral  lands — that  is  to  say,  lead  lands — 
were  finally  authorized  by  statute ;  but  this  applied  only  to  the  lead  lands  of  the 
upper  Mississippi.  At  first  only  Missouri  was  included.  By  a  later  statute  lead 
lands  in  Illinois,  Wisconsin,  Iowa,  and  Arkansas  were  authorized  to  be  sold 
for  the  space  of  six  months.  By  a  still  later  act  the  copper,  lead,  and  other 
mineral  leads  of  Michigan  were  authorized  to  be  sold  after  an  advertisement 
of  six  months.  Later  the  lead  land  in  the  Chippewa  district  in  Wisconsin  was 
included."  1  Snyder  on  Mines,  §  56. 

«  Act  Feb.  18,  1873,  c.  159,  17  Stat.  465. 
COST.MIN.L.— 3 


34  MINING  LAW  STATUS  OP  STATES  AND  TERRITORIES,  ETC.       (Ch.  2 

Subsequent  Acquisitions. 

The  Louisiana  purchase  in  1803,  the  Florida  purchase  in  1819,  the 
Texas  annexation  in  1845,  the  recognition  of  our  claims  to  Oregon 
by  Great  Britain  in  1846,  the  Mexican  cession  in  1846,  and  the  Gads- 
den  purchase  in  1853,  brought  to  the  United  States  a  vast  extent  of 
territory,  nearly  the  whole  of  which,  except  that  inclosed  within  the 
borders  of  the  present  state  of  Texas,  was  subject  to  the  United  States 
land  laws.  Of  the  states  and  territories  which  have  resulted  from  these 
acquisitions,  a  number  have  not  been  subject  to  the  United  States  min- 
ing laws,  for  one  reason  or  another.  Texas  retained  the  title  to  its 
own  lands,  so  never  was  subject  to  the  United  States  mineral  or  other 
land  laws.  It  has  a  mining  law  code  of  its  own.  Other  states,  because 
of  lack  of  minerals  within  their  borders  or  for  other  reasons,  have 
been  without  the  mining  law  jurisdiction. 

The  Alaska  purchase  in  1867,  the  Hawaiian  annexation  in  1898,  the 
Spanish  cession  in  1899  of  Porto  Rico,  of  the  Philippines,  and  of 
Guam,  and  the  acquisition  of  part  of  the  Samoan  Islands  by  the  treaty 
of  December  2,  1899,  ratified  in  1900,  added  other  territory.  Alaska  is 
mining  law  territory,  and  is  governed  by  a  special  act  approved  June 
6,  1900,9  and  a  supplementary  act  of  June  13,  1902.10  The  Philip- 
pines are  also  subject  to  an  elaborate  special  mining  act,  of  date  July 
1,  1902,11  amended  February  6,  1905.12  Porto  Rico,  the  Hawaiian 
Islands,  and  the  Samoan  Islands  seem  to  have  no  mining  law  and  to 
need  none. 


THE  MINING  LAW  STATUS  OF    THE  SEVERAL  STATES  AND  TER- 
RITORIES. 

9.  Congress  has  provided  specially  for  Alaska  and  the  Philippines. 
,  The  other  mining  law  territories  and  states,  with  the  ex- 
ception of  California,  have  adopted  mining  codes.  A  number 
of  the  states  not  subject  to  American  mining  law  have  legis- 
lation for  the  inspection  and  other  police  regulation  of  coal 
and  other  mines. 

Now  we  are  ready  to  take  up  the  different  states  and  territories 
alphabetically.  In  doing  so  we  shall  note  briefly  local,  as  well  as  na- 
tional, legislation  in  mining.  It  should  be  pointed  out  at  the  start  that 

»  31  Stat.  321,  c.  786. 

10  32  Stat.  385,  c.  1082.     A  special  act  about  Alaskan  coal  lands,  approved 
May  28,  1908,  and  land  department  rules  thereunder,  will  be  found  in  37  Land 
Dec.  Dep.  Int.  (Advance  Sheets)  .20-23.    See,  also,  acts  cited  in  note  1,  supra. 

11  32  Stat.  697,  c.  1369. 

12  33  Stat.  692,  c.  453. 


§  9)  MINING   LAW   STATUS   OF   STATES  AND   TERRITORIES.  35 

under  the  act  of  January  31,  1901,  the  placer  mining  acts,  so  far  as 
saline  lands  are  concerned,  are  extended  to  all  states  and  territories 
and  to  the  district  of  Alaska.18 

Alabama.  By  the  act  of  June  21,  186 6,14  Congress  expressly  ex- 
cepted  mineral  lands  from  the  land  laws  applicable  to  the  state.  By 
the  Revision  of  1875  it  was  expressly  provided  that  only  homesteaders 
could  acquire  public  lands  in  Alabama.15  By  the  act  of  March  3, 
1883,16  all  lands  in  Alabama  were  declared  to  be  agricultural.  Un- 
der the  act  of  March  27,  1906,*  the  coal  and  iron  public  lands  in  Ala- 
bama have  been  reclassified,  and  such  lands  are  not  subject  to  entry. f 
By  state  legislation  the  inspection  and  other  police  regulation  of  coal 
mines  is  provided  for. 17 

Alaska.  By  the  act  of  June  6,  1900,18  the  laws  of  the  United  States 
relating  to  mining  are  extended  to  Alaska,  with  a  provision  that  the 
miners  may  make  district  rules  and  regulations  not  in  conflict  with  the 
laws  of  the  United  States.  Recording  divisions  are  provided,  and 
the  recording  of  notices  of  location  of  mining  claims  required.  The 
recording  divisions  are  defined  by  the  act  of  June  13,  1902.19  The 
coal  lands  laws  were  extended  to  Alaska  by  the  act  of  June  6,  1900,20 
and  later  the  location  and  patenting  of  coal  lands  in  Alaska  was  espe- 
cially provided  for  by  the  act  of  April  28,  1904.  21  A  statute  making 
special  provisions  about  Alaskan  coal  lands  was  approved  May  28, 
19084  The  coal  land  regulations,  issued  by  the  General  Land  Office 
April  12,  1907,  also  contain  special  provisions  for  Alaska. 


1331  Stat.  745,  c.  186  (U.  S.  Comp.  St.  1901,  p.  1435).  See  1  Lindley  on 
Mines  (2d  Ed.)  §§  514a,  515.  Under  that  act  "all  unoccupied  lands  of  the  United 
States  containing  salt  springs  or  deposits  of  salt  in  any  form,  and  chiefly 
valuable  therefor,  are  hereby  declared  to  be  subject  to  location  and  purchase 
under  the  provisions  of  the  law  relating  to  placer  mining  claims,  provided  that 
the  same  person  shall  not  locate  or  enter  more  than  one  claim  hereunder." 

i*  14  Stat.  66,  c.  127. 

is  Rev.  St.  U.  S.  §  2303.  This  section  was  repealed  by  Act  July  4,  1876,  c. 
165,  19  Stat.  73  (U.  S.  Comp.  St.  1901,  p.  1411). 

is  22  Stat.  487,  c.  118  (U.  S.  Comp.  St.  1901,  p.  1439). 

*34  Stat.  88,  c.  1347  (U.  S.  Comp.  St.  Supp.  1907,  p.  476). 

•{•Instructions,  36  Land  Dec.  Dep.  Int.  109. 

IT  Civ.  Code  Ala.  1896,  §§  2899-2936;  Gen.  Laws  1898-99,  p.  86;  Gen.  Laws 
1903,  pp.  52,  86,  427. 

i&31  Stat.  321,  c.  786.    Compare  Act  May  17,  1884,  c.  53,  §  8,  23  Stat.  26. 

i»  32  Stat.  385,  c.  1082. 

20  31  Stat.  658,  c.  796  (U.  S.  Comp.  St.  1901,  p.  1441). 

21  33  Stat  525,  c.  1772  (U.  S.  Comp.  St.  Supp.  1907,  p.  479).    See  Circular  of 
Land  Office,  33  Land  Dec.  Dep.  Int.  114. 

JSee  37  Land  Dec.  Dep.  Int.  (Advance  Sheets)  22,  23. 


36  MINING  LAW  STATUS  OF  STATES  AND  TERRITORIES,  ETC.       (Ch.  2 

Arizona  is  one  of  the  mining  law  territories.  It  has  a  general  min- 
ing code,  supplementary  to  the  federal  legislation.22 

Arkansas.  By  the  act  of  June  21,  1866, 23  Congress  expressly  ex- 
cepted  mineral  lands  from  the  land  laws  applicable  to  the  state.  By 
the  Revision  of  1875  it  was  expressly  provided  that  only  homesteaders 
could  acquire  public  land  in  Arkansas.24  By  the  act  of  July  4,  1876, 25 
however,  the  provision  of  the  revision  was  repealed.  The  lead  lands 
in  Arkansas  were  sold  under  special  acts  prior  to  the  general  mining 
laws,  but  the  federal  mining  laws  seem  to  be  applicable  to  mineral  land 
in  Arkansas  other  than  lead.26  By  state  legislation  the  inspection  and 
other  police  regulation  of  coal  mines  is  provided  for  27  and  a  brief 
general  mining  code  is  enacted.28 

California  is  one  of  the  mining  law  states;  but  it  does  not  have  a 
statutory  code  to  supplement  the  federal  laws.  A  mining  code  was 
enacted  in  1897,29  but  repealed  in  1899.30  District  mining  rules,  regu- 
lations, and  customs  there  supplement  the  federal  statutes.  Various 
state  statutes,  including  those  as  to  evidence  and  recording,  affect 
mining  claims.  Sections  1159  and  1169  of  the  California  Civil  Code, 
for  instance,  seem  to  require  notices  of  location  of  mining  claims  to 
be  recorded  in  the  county  recorder's  office.31  There  are  also  statutes 
for  the  inspection  and  other  police  regulation  of  mines.32 

Colorado  is  one  of  the  mining  law  states,  and  has  a  general  mining 
code,  supplementing  the  federal  legislation,  and  also  statutes  providing 
for  the  inspection  and  other  police  regulation  of  mines.33 

Connecticut  is  one  of  the  original  thirteen  states,  in  which  the  United 
States  never  had  any  public  domain.  The  federal  mining  laws  are 

22  Civ.  Code  Ariz.  1901,  pars.  3231-3259;    Laws  1903,  p.  12,  No.  5;    Laws 
1907,  pp.  20,  27,  cc.  20,  22. 

23  14  Stat.  66,  c.  127. 

2  *  Rev.  St.  U..S.  §  2303. 

25  19  Stat.  73,  c.  165  (U.  S.  Comp.  St.  1901,  p.  1411). 

2«  See  Norman  v.  Phoenix  Zinc  Mining  &  Smelting  Co.,  28  Land  Dec.  Dep. 
Int.  361;  Woody  v.  Bernard,  69  Ark.  579,  65  S.  W.  100;  Buffalo  Zinc  &  Cop- 
per Co.  v.  Crump,  70  Ark.  525,  69  S.  W.  572,  91  Am.  St.  Rep.  87. 

27  Kirby's  Dig.  Ark.  §§  5337-5359. 

28  Kirby's  Dig.  Ark.  §§  5360-5366. 
2»  St.  Cal.  1897,  p.  214,  c.  159. 

so  St.  Cal.  1899,  p.  148,  c.  113. 

si  See,  also,  St.  1905,  p.  738,  c.  563,  for  a  statute  making  the  date  of  loca- 
tion recited  in  a  United  States  patent  prima  facie  evidence  of  such  date. 

32  Gen.  Laws  Cal.  1903  (Deering's  Ed.)  pp.  609-626. 

832  Mills'  Ann.  St.  Colo.  §§  3136-3247;  Mills'  Ann.  St.  Rev.  Supp.  1891- 
1905,  §§  3136-3247;  Laws  1905,  pp.  160,  342,  cc.  79,  134;  Laws  1907,  p.  336» 
c.  153.  In  Laws  1905,  p.  342,  c.  134,  mining  locations  on  state  lands  are  pro- 
Tided  for. 


§  9)  MINING   LAW   STATUS   OF   STATES   AND   TERRITORIES.  37 

therefore  inapplicable.  The  state  taxes  "quarries,  mines  and  ore 
beds,"  34  and  allows  nonresident  aliens  to  acquire  and  hold  real  estate 
"for  the  purpose  of  quarrying,  mining,  dressing  or  smeltin'g  ores  on 
the  same,  or  converting  the  products  of  such  quarries  and  mines  into 
articles  of  trade  and  commerce."  35  It  also  regulates  the  sale  of  shares 
of  stock  in  mining  corporations.36 

Delaware  is  one  of  the  original  thirteen  states,  so  never  was  sub- 
ject to  the  federal  mining  laws.  There  seems  to  be  no  state  legisla- 
tion on  mining. 

District  of  Columbia.  The  mining  laws  of  the  United  States  have 
never  applied  here,  and  there  seems  to  be  no  legislation  on  mining  for 
the  District.  The  only  suggestion  that  there  are  federal  mining  rights 
in  the  District  seems  to  be  found  in  Shoemaker  v.  United  States.37 

Florida.  For  federal  legislation  as  to  Florida,  see  Arkansas,  down 
through  the  act  of  1876.  Though  the  mining  laws  are  applicable  to 
Florida,  there  seems  to  be  no  mining  land.  There  also  seems  to  be 
no  state  legislation,  except  in  regard  to  the  necessity  of  inclosing  pits 
and  washings.38 

Georgia  is  one  of  the  original  thirteen  states,  so  never  was  subject 
to  the  federal  mining  laws.  A  state  statute  provides  for  the  condemna- 
tion of  roads,  tracts,  tramways,  and  ditchways  needed  for  the  success- 
ful operation  of  mines.39 

Hawaii.  The  United  States  public  land  laws  have  not  been  extend- 
ed to  the  Hawaiian  Islands.  The  joint  resolution  of  July  7,  1898,40 
said  that  the  public  land  laws  df  the  United  States  should  not  apply 
there,  and  the  act  of  April  3,  1900,41  declared  that  the  laws  of  Hawaii 
as  to  public  lands  should  remain  in  force  until  Congress  should  other- 
wise provide.  Congress  has  made  no  provision  about  mining  in  Ha- 
waii. There  seems  to  be  no  local  legislation,  and  there  appears  to  be 
no  need  of  any  enactment.42 

Idaho  is  a  mining  law  state,  with  a  general  mining  code,  supplement- 
ing the  federal  legislation.43 

34  Gen.  St.  Conn.  1902,  §  2322. 

35  Gen.  St.  Conn.  1902,  §  4411. 

36  Pub.  Laws  1903,  p.  179,  c.  196. 

37  147  U.  S.  282,  13  Sup.  Ot.  361,  37  L.  Ed.  170. 
ss  Gen.  St.  Fla.  1906,  §§  3152,  3394. 

8»  1  Pol.  Code  Ga.  1895,  §§  650-657;  Laws  1897,  p.  2L 
*o  30  Stat.  750,  Resolution  No.  55. 

41  31  Stat  141,  154,  c.  339. 

42  See  2  Lindley  on  Mines  (2d  Ed.)  §  877. 

4  3  Civ.  Code  Idaho  1901,  §§  2555-2578;  Sess.  Laws  1903,  pp.  4,  290.  An 
eight-hour  day  is  provided  by  Sess.  Laws  190*7,  p.  97. 


38  MINING  LAW  STATUS  OF  STATES  AND  TERRITORIES,  ETC.       (Ch.  2 

Illinois.  The  public  lands  in  Illinois  were  practically  all  sold  before 
the  discovery  of  gold  in  California.  The  lead  lands  were  sold  under 
special  laws.  For  the  foregoing  reason,  the  federal  mining  laws  never 
have  had  a  practical  operation  in  Illinois.  The  state  legislation  pro- 
vides for  the  inspection  and  other  police  regulation  of  coal  mines.44 

Indiana.  Same  state  of  facts  as  Illinois,  so  far  as  federal  legisla- 
tion is  concerned.  The  state  legislation  provides  for  the  inspection 
and  other  police  regulation  of  mining.45 

Iowa.  Same  state  of  facts  as  Illinois,  so  far  as  federal  legislation  is 
concerned.46  The  state  legislation  provides  for  the  inspection  and 
other  police  regulation  of  mines.47 

Kansas.  By  the  act  of  Congress  of  May  5,  1876, 48  Kansas  was  ex- 
cepted  from  the  operation  of  the  federal  mining  laws  and  all  land  made 
subject  to  disposal  as  agricultural  lands.  The  state  legislation  pro- 
vides for  the  inspection  and  other  police  regulation  of  coal  mines.49 

Kentucky  was  carved  out  of  Virginia,  one  of  the  original  thirteen 
states.  It  has  never  been  subject  to  the  federal  mining  or  other  land 
laws  of  the  United  States,  but  succeeded  to  the  ownership  of  the  lands 
within  its  borders  undisposed  of  by  Virginia.  The  state  legislation 
provides  for  the  inspection  and  other  police  regulation  of  coal  mines.50 

Louisiana.  For  federal  legislation,  see  Arkansas,  down  through  the 
act  of  1876.  Though  the  federal  mining  laws  are  applicable  to  Louisi- 
ana, there  seems  to  be  no  public  mining  land  there.  The  state  legisla- 
tion provides  that  the  usufructuary  is  to  enjoy  mines  and  quarries  al- 
ready opened,  but  not  others.51 

Maine  was  carved  out  of  Massachusetts,  one  of  the  original  thirteen 
states.  The  United  States  has  never  owned  public  land  there,  so  the 
federal  mining  laws  have  never  applied  there.  By  the  act  of  separa- 

4*  Starr  &  C.  Ann.  St.  Supp.  1902,  pp.  841-868,  c.  93,  pars.  1-39;  Starr  &  O. 
Ann.  St.  Supp.  1903,  pp.  385-389,  c.  93,  pars.  1-13;  Laws  111,  1905,  pp.  324- 
830;  Laws  1907,  pp.  387-403. 

45  For  Indiana  state  inspection  and  other  police  regulation  of  coal  mines, 
see  2  Homer's  Ann.  St.  Ind.  1901,  §§  5458-5480ZJ;    Acts  1903,  p.  176,  c.  90; 
Acts  1907,  pp.  347-353,  c.  204. 

46  But  see  1  Snyder  on  Mines,  p.  126,  §  153,  where  the  argument  is  advanced 
that  Iowa  has  been  excluded  from  the  operation  of  the  federal  mining  law. 

47McClain's  Code  1888,  §§<  2449-2482;  Code  1897,  §§  1967-1974;  Code 
Supp.  1902,  §§  2478-2496;  Laws  1902,  p.  63,  c.  100;  Laws  1907,  pp.  129,  130, 
c.  130. 

4*19  Stat.  52,  c.  91  (U.  S.  Comp.  St.  1901,  p.  1439). 

4»1  Gen.  St.  Kan.  1901,  §§  4109-4181;  Laws  1903,  p.  557,  c.  360;  Laws 
1905,  pp.  433,  473-^76,  898,  cc.  278,  304,  534;  Laws  1907,  pp.  399-403,  c.  249. 

eo  Ky.  St.  1899,  §§  2722-2739a ;  -Acts  1902,  p.  125,  c.  25. 

"Merrick's  Rev.  Civ.  Code  La.  1900,  art.  £52. 


§  9)  MINING   LAW   STATUS   OF    STATES   AND   TERRITORIES.  39 

tion  of  June  19,  1819,  Massachusetts  gave  Maine  half  the  ungranted 
lands  within  the  borders  of  Maine,  and  in  1853  deeded  to  Maine  the 
rest.52  The  state  legislation  establishes  a  mining  bureau  to  collect  in- 
formation about  mines,53  allows  the  condemnation  of  ditches  for 
drainage  of  mines  and  quarries,54  and  provides  for  the  inspection  of 
mines  and  quarries.56 

Maryland  is  one  of  the  original  thirteen  states,  in  which  the  United 
States  never  had  any  public  domain.  The  federal  mining  laws  have,, 
therefore,  never  applied  there.  The  state  legislation  provides  a  meas- 
ure of  damages  for  abstracting  minerals  from  another's  land,56  and 
regulates  mining  companies.57 

Massachusetts  was  one  of  the  thirteen  original  states,  so  never  was. 
subject  to  the  federal  mining  laws.  The  state  legislation  provides  for 
the  condemnation  of  roads,  ditches,  etc.,  for  approaching,  draining, 
etc.,  quarries,  mines,  or  mineral  deposits,58  and  provides  for  the  incor- 
poration of  mining  companies  and  their  taxation.59 

Michigan  was  subject  to  the  general  land  laws  of  the  United  States. 
Its  lead  and  copper  lands  were  sold  under  special  acts  prior  to  the  gen- 
eral mining  legislation.  By  the  act  of  February  18,  1873, 60  the  mineral 
lands  of  the  state  were  excluded  from  the  operation  of  the  mining 
act  of  1872,  and  "declared  free  and  open  to  exploration  and  purchase 
according  to  the  legal  subdivisions  thereof,  as  before  the  passage  of 
said  act."  The  state  legislation  asserts  "the  sovereign  right  of  the 
people  of  Michigan"  to  "(1)  all  mines  of  gold  or  silver,  or  either  of 
them,"  within  the  state,  and  "(2)  all  mines  of  other  metals  or  minerals 
*  *  *  which  are  connected  with,  or  shall  be  known  to  contain  gold 
or  silver  in  any  proportion,"  but  provides  that  this  sovereign  right 
shall  not  be  enforced  against  any  citizen  of  the  state  owning  the  fee 
of  the  soil  containing  the  mines  or  minerals  by  bona  fide  purchase 
from,  through,  or  under  the  general  or  state  government,  except  that 
he  must  pay  in  lieu  of  all  other  state  taxes  a  specific  tax  of  2  per  cent, 
upon  the  product  of  iron  mines  and  of  4  per  cent,  upon  the  average 

62  See  Roberts  v.  Richards,  84  Me.  1,  5,  24  Atl.  425. 

ca  Rev.  St.  Me.  1903,  c.  40,  §§•  59-62. 

e*  Rev.  St.  Me.  1903,  c.  21,  §§  28-35. 

66  Laws  Me.  1907,  p.  77,  c.  77. 

682  Code  Pub.  Gen.  Laws  Md.  1904,  art.  75,  §  92. 

"  1  Code  Pub.  Gen.  Laws  Md.  1904,  art.  23,  §§  227-239 ;  Laws  1906,  p. 
259,  c.  178. 

682  Rev.  Laws  Mass.  1902,  c.  195,  §§  17-25. 

69  1  Rev.  Laws  Mass.  1902,  c.  14,  §§  49-51. 

eo  17  stat.  465,  c.  159;  Rev.  St.  U.  S.  §•  2345  (U.  S.  Comp.  St.  1901,  p.  1438). 
See  U.  S.  v.  Omdahl,  25  Land  Dec.  Dep.  Int.  157. 


40  MINING  LAW  STATUS  OF  STATES  AND  TERRITORIES,  ETC.       (Ch.  2 

yield  and  value  of  all  ores  and  product  of  other  mines.61  Known  min- 
eral lands  of  the  state  are  reserved  from  sale,62  but  may  be  leased  by 
the  commissioner  of  the  state  land  office.63  A  commission  to  collect 
and  distribute  mining  statistics  is  created.64  The  inspection  of  coal 
mines  is  provided  for.65 

Minnesota.  For  federal  legislation  affecting  Minnesota,  see  Mich- 
igan. The  lands  sold  under  special  federal  laws  in  Minnesota  were 
lead  lands.  Minnesota  has  a  regular  mining  code.66  It  was  adopted 
in  1867;  but  in  1873  the  federal  mining  laws  were  declared  by  Con- 
gress no  longer  applicable  to  Minnesota.  The  code  is  therefore  prac- 
tically a  dead  letter.  Here  it  should  be  noted  that  Minnesota  has  a 
very  interesting  statutory  provision  that,  where  there  is  a  plurality  of 
owners  of  lands  containing  minerals,  those  who  own  half  or  more  of 
the  property  may  apply  to  the  proper  court  and  get  an  order  which 
will  entitle  the  one  getting  the  order,  on  giving  bond,  to  open,  operate, 
and  develop  the  mine,  by  keeping  accounts  and  making  settlement  on 
•demand  after  monthly  statements  rendered.67  Nonoperating  owners 
are  given  access  to  the  property  and  workings  at  all  reasonable  times 
to  measure  up  the  workings  and  to  verify  accounts.68  If  the  majority 
in  interest  do  not  want  to  work  the  property,  or  abandon  their  right 
for  a  year,  the  minority  in  interest  may  get  an  order.69  Only  judg- 
ment liens  can  attach  to  the  lands  so  being  worked.70  The  state  legis- 
lation also  provides,  among  other  things,  for  the  leasing  of  state  lands, 
for  the  mining  and  shipping  of  iron  ore,71  for  the  taxation  of  miner- 
.al  lands,72  and  for  the  creation  of  corporations  for  mining  and  smelt- 
ing ores  and  manufacturing  metals.78  Minerals  in  state  lands  are 
reserved  to  the  state.74 

Mississippi.  See  Louisiana,  for  federal  legislation.  There  seems 
to  be  no  state  legislation. 

ei  1  Comp.  Laws  Mich.  1897,  §§  1526-1530.  The  validity  of  this  legisla- 
tion may  in  part  be  questioned.  See  1  Lindley  on  Mines  (2d  Ed.)  p.  38,  §  20. 

62  i  Comp.  Laws  Mich.  1897,  §  1528. 

es  1  Comp.  Laws  Mich.  1897,  §§  1411-1421. 

64  2  Oomp.  Laws  Mich.  1897,  §§  4630-^635. 

e  s  Pub.  Acts  Mich.  1899,  p.  93,  No.  57;  Pub.  Acts  1903,  p.  147,  No.  125; 
Pub.  Acts  1905,  pp.  142-147,  No.  100. 

ee  l  Gen.  St.  Minn.  1894,  §§  4059^1075. 

67  Laws  Minn.  1907,  pp.  198-201,  c.  177. 

es  id. 

69  Id. 

70  Id. 

71  Gen.  St.  Minn.  1894,  g§  4076-4083. 

72  Laws  Minn.  1899,  p.  268,  c.  235. 
731  Gen.  St.  Minn.  1894,  §§  2827-2837. 
^*  Laws  Minn.  1901,  pp.  108-110,  c.  104. 


§  9)  MINING  LAW   STATUS   OF   STATES   AND  TERRITORIES.  41 

Missouri  came  under  the  general  land  and  mining  laws,  as  part 
of  the  Louisiana  purchase.  Its  lead  mines  were  leased  by  authority 
of  Congress  early,  and  finally  sold  under  special  acts  prior  to  the 
discovery  of  gold  in  California.  The  general  mining  laws  at  first 
applied  to  Missouri,  but  by  the  act  of  May  5,  1876, 75  deposits  of 
minerals  in  Missouri  were  excluded  from  these  laws  and  made  sub- 
ject to  disposal  as  agricultural  lands.  The  state  legislation  provides 
for  the  inspection  and  other  police  regulation  of  mining.78 

Montana  is  a  mining  law  state,  and  has  a  general  statutory  mining 
code,  supplementing  federal  legislation,79  and  also  statutes  providing 
for  the  condemnation  of  rights  of  way  and  the  inspection  and  other 
police  regulation  of  mines.80  Mining  partnerships  are  also  legislated 
about.81 

Nebraska,  as  a  part  of  the  Louisiana  purchase,  has  been  subject  to 
the  general  land  laws.  The  enabling  act  of  the  state,  approved  April 
19,  1864,82  specifically  provided  that  all  laws  of  the  United  States 
not  locally  inapplicable  should  have  the  same  force  and  effect  within 
the  state  as  elsewhere  within  the  United  States.  Despite  the  state- 
ment of  Mr.  Snyder  to  the  contrary,83  it  seems  clear  that  Nebraska 
would  be  subject  to  the  mining  laws,  if  there  were  mineral  lands  in 
the  state.  The  state  legislation  offers  a  reward  for  the  discovery  of 
iron,  coal,  oil,  or  gas  in  the  state.8* 

Nevada  is  a  mining  law  state,  and  has  a  general  mining  code,  sup- 
plementary to  federal  legislation,85  and  has  also  police  and  other  reg- 
ulation of  mines  and  mine  owners.86 


75  19  stat.  52,  c.  91  (U.  S.  Comp.  St.  1901,  p.  1439). 

782  Rev.  St.  Mo.  1899,  §§  8766-8828  (Ann.  St.  1906,  pp.  4068-4100);  Laws 
1901,  pp.  211-215  (Ann.  St.  1906,  §§  8793,  8794,  8811,  8818,  8826,  8828) ;  Laws 
1903,  pp.  242-247  (Ann.  St.  1906,  §§  8819(1) -8819  (19),  8791,  8791a,  8826,  8827); 
Laws  1905,  pp.  236-238  (Ann.  St.  1906,  §§  8796  (1),  8796  (2),  8801a,  8811); 
Laws  1907,  pp.  362-366. 

7  9  Pol.  Code  Mont.  1895,  §•§  3613,  3614,  3616;    Laws  1907,  pp.  18-23. 

so  Pol.  Code  Mont.  1895,  §§  580-590;  Pol.  Code  1895,  §§  335O-3372,  3630- 
3654;  Laws  1897,  pp.  66,  67,  245;  Laws  1899,  pp.  134,  149;  Laws  1905,  p.  30; 
Laws  1907,  pp.  337-342. 

si  Civ.  Code  1895,  §§  3350-3359. 

82  13  Stat.  47,  c.  59. 

ss  1  Snyder  on  Mines,  §  153,  p.  126. 

s  *  Comp.  St.  Neb.  1907,  §§  4508^513. 

ss  Comp.  Laws  Nev.  §£  208-249;  Laws  1901,  pp.  97,  118,  cc.  93,  107;  Laws 
1907,  pp.  140,  193,  373,  418-420,  cc.  65,  91,  177,  194;  Comp.  Laws  Nev.  §§ 
2715,  2716,  2720-2724,  3407-3414,  3706;  Laws  1905,  p.  199,  c.  98;  Laws 
1907,  pp.  370,  371,  c.  174. 

86  Comp.  Laws  Nev.  §§  250-300. 


42  MINING  LAW  STATUS  OF  STATES  AND  TERRITORIES,  ETC.       (Ch.  2 

New  Hampshire  is  one  of  the  original  thirteen  states  so  never  was 
subject  to  the  federal  mining  laws.  State  legislation  provides  that 
real  estate  is  to  be  taxed  independently  of  any  mines  or  ores  therein 
until  the  latter  become  a  source  of  profit.87 

New  Jersey.  Like  New  Hampshire,  New  Jersey  is  one  of  the  orig- 
inal thirteen  states,  so  never  was  subject  to  the  federal  mining  laws. 
State  legislation  provides  for  the  inspection  of  mines.88 

New  Mexico  is  one  of  the  mining  law  territories.  It  has  a  general 
mining  code,  supplementary  to  the  federal  legislation.89 

New  York.  Like  New  Hampshire,  New  York  is  one  of  the  orig- 
inal thirteen  states,  so  never  was  within  the  federal  mining  laws. 
The  New  York  statute  asserts  that  "the  following  mines  are  the  prop- 
erty of  the  people  of  the  state  in  their  right  of  sovereignty:  (1) 
All  mines  of  gold  and  silver  discovered,  or  hereafter  to  be  discovered, 
within  the  state.  (2)  All  mines  of  other  metals  and  of  talc,  mica  or 
graphite  discovered,  or  hereafter  to  be  discovered,  upon  any  lands 
owned  by  persons  not  being  citizens  of  the  United  States.  (3)  All 
mines  of  other  metals  and  of  talc,  mica  or  graphite  discovered,  or 
hereafter  to  be  discovered,  upon  lands  owned  by  a  citizen  of  the 
United  States,  the  ore  of  which,  on  an  average,  shall  contain  less 
than  two  equal  third  parts  in  value  of  copper,  tin,  iron,  and  lead,  or 
any  of  these  metals.  (4)  All  mines  and  all  minerals  and  fossils  dis- 
covered, or  hereafter  to  be  discovered,  upon  any  lands  belonging  to 
the  people  of  this  state."  90  Mines  or  minerals  on  state  lands  dis- 
covered by  citizens  of  New  York  may  be  appropriated  by  giving  no- 
tice to  the  Secretary  of  State.  That  notice  gives  the  right  to  work 
"such  mine,"  and  the  discoverer  "and  his  heirs  or  assigns  shall  have 
the  sole  benefit  of  all  products  therefrom,  on  the  payment  into  the 
state  treasury  of  a  royalty  of  two  per  centum  of  the  market  value  of 
all  such  products,"  such  valuation  to  be  made  when  the  product  "shall 
first  be  in  a  marketable  form,"  and  to  be  ascertained  from  sworn 
semiannual  statements.91  All  mines,  other  than  gold  and  silver,  dis- 

87  Pub.  St.  N.  H.  1901,  c.  55,  §  4. 

ss  2  Gen.  St.  N.  J.  1895,  p.  1904,  §§  37-40. 

8»Comp.  Laws  N.  M.  1897,  §§  2286-2359;  Laws  1899,  p.  Ill,  c.  57;  Laws 
1905,  p.  196,  c.  83. 

»<>4  Gumming  &  G.  Gen.  Laws  N.  Y.  Supp.  1906,  p.  1237,  §  80.  The  va- 
lidity of  this  legislation  is  not  open  to  the  same  attack  as  that  of  Michigan, 
for  the  federal  mining  laws  never  applied  in  New  York,  as  they  did  in 
Michigan. 

»i  2  Gumming  &  G.  Gen.  Laws  N.  Y.  1901,  p.  3000,  §•§  81-83.  It  is  held 
that  under  this  statute  the  discoverer  does  not  get  a  legal  title  to  the  mine 
or  to  the  minerals  in  the  land,  but  only  a  right  to  take  the  minerals  out,  and 
that  the  discoverer  cannot  maintain  ejectment  to  recover  possession  of  the 


§  9)  MINING   LAW   STATUS   OF   STATES   AND   TERRITORIES.  43 

covered  in  lands  owned  by  a  citizen  of  the  United  States,  "the  ore 
of  which,  on  an  average,  contains  two  equal  third  parts  or  more  in 
value  of  copper,  tin,  iron,  and  lead,  or  any  of  these  metals,  shall 
belong  to  the  owner  of  such  land."  92  The  discoverer  of  gold  or  sil- 
ver mines,  who  gives  notice  of  the  discovery  to  the  Secretary  of  State 
is  exempted,  and  so  are  his  personal  representatives  and  assigns,  from 
paying  any  royalty  for  21  years  from  the  time  of  giving  notice,  and 
after  the  end  of  that  term  "the  discoverer,  his  heirs,  or  assigns,  shall 
have  the  sole  benefit  of  all  products  therefrom  on  the  payment  into 
the  state  treasury  of  a  royalty  of  one  per  centum  of  the  market 
value  of  all  such  products."  93  No  trees  can  be  cut  or  destroyed  on 
state  lands,  "except  such  trees  as  it  may  be  actually  necessary  to  re- 
move in  order  to  uncover  or  make  a  road  to  such  mine,"  and  these 
must  be  paid  for.  No  one  can  prospect  on  lands  without  the  con- 
sent of  the  owner;  the  commissioners  of  the  land  office  being  the  ones 
to  give  consent  where  state  lands  are  concerned.9*  Corporations  may 
acquire  by  condemnation  the  right  to  enter  upon  and  break  up  lands 
necessary  for  the  operation  of  their  mines.95  Various  police  regula- 
tions govern  the  working  of  mines.96 

North  Carolina  is  one  of  the  thirteen  original  states,  and  hence 
has  never  been  subject  to  the  federal  mining  law.  State  legislation 
provides  for  the  inspection  and  other  police  regulation  of  mines  and 
the  condemnation  of  waterways.97 

North  Dakota,  is  a  mining  law  state,  and  has  a  general  mining  code, 
supplementing  the  federal  legislation.98 

Ohio.  The  federal  mining  laws  have  had  practically  no  operation 
in  Ohio,  because  its  lands  were  sold  prior  to  the  general  mining  acts. 
State  legislation  provides  for  the  taxation,  inspection,  and  general 
police  regulation  of  mines.99 

Oklahoma.  By  the  act  of  March  3,  1891,100  all  lands  in  Oklahoma 
were  "declared  to  be  agricultural  land,"  though  by  the  act  of  June 

lands,  but  must  seek  relief  in  equity.  MOORE  v.  BROWN,  139  N.  Y.  127,  34 
N.  E.  772. 

»2  2  Gumming  &  G.  Gen.  Laws  N.  Y.  1901,  p.  3000,  §§  81-83. 

93  2  Gumming  &  G.  Gen.  Laws  N.  Y.  1901,  p.  3001,  §  84. 

s*  2  Gumming  &  G.  Gen.  Laws  N.  Y.  1901,  pp.  3001,  3002,  §§  84,  85. 

»52  Gumming  &  G.  Gen.  Laws  N.  Y.  1901,  p.  3002,  §  85. 

»6  See  4  Gumming  &  G.  Gen.  Laws  N.  Y.  Supp.  1906,  p.  923,  §§  131-133. 

87  2  Revisal  N.  C.  1905.  §•§  4930-4957. 

88  Rev.  Codes  N.  D.  19(J5,  §§  1800-1817,  6256-6263,  7536. 

89  1  Bates'  Ann.  St.  Ohio  (3d  Ed.)  1900,  §§  290-310,  2792,  2  Bates'  Ann.  St. 
(3d    Ed.)  1900,  §§  4373-1  to  4379-5,  4935-1;    Laws  1904,  p.  63;    Laws  1906, 
pp.   169,   259. 

100  26  Stat  1026,  c.  543,  §  16  (U.  S.  Corap.  St.  1901,  p.  16J7). 


44  MINING  LAW  STATUS  OF  STATES  AND  TERRITORIES,  ETC.       (Ch.  2 

6,  1900,101  the  existing  mining  laws  of  the  United  States  were  ex- 
tended over  Oklahoma  lands  ceded  to  the  United  States  by  the  Co- 
manche,  Kiowa,  and  Apache  tribes  of  Indians.  The  local  legisla- 
tion provides  penalties  for  malicious  injury  to  mining  notices,  stakes, 
shafts,  and  records,102  and  the  Constitution  of  the  new  state  creates 
the  office  of  chief  inspector  of  mines,  oil,  and  gas  and  directs  the 
Legislature  to  create  mining  districts.103  The  part  of  Oklahoma 
formerly  known  as  Indian  Territory  was  and  is  subject  to  certain 
federal  legislation  about  mining  in  Indian  lands.  By  the  act  of 
June  28,  1898, 104  Congress,  in  addition  to  providing  for  allotments 
of  lands  in  Indian  Territory,  legislated  about  mining  in  those  lands. 
The  act  provides  that  "all  oil,  coal,  asphalt  and  mineral  deposits  in  the 
lands  of  any  tribe  are  reserved  to  such  tribe  and  no  allotment  of 
such  lands  shall  carry  the  title  to  such  oil,  coal,  asphalt  or  min- 
eral deposits," 105  and  the  Secretary  of  the  Interior  is  given  sole 
authority  to  make  leases  of  "oil,  coal,  asphalt  and  other  minerals  in 
said  territory,"  under  rules  and  regulations  from  time  to  time  pro- 
vided by  him,  and  with  certain  restrictions  fixed  by  the  act.106  The 
validity  of  this  legislation  has  been  upheld  by  the  United  States  Su- 
preme Court.107 

Oregon  is  a  mining  law  state,  and  has  a  general  mining  code,  sup- 
plementing the  federal  legislation.108 

Pennsylvania  was  one  of  the  thirteen  original  states,  and  so  never 
was  subject  to  the  federal  land  laws.  The  state  legislation  provides 
for  the  inspection  and  other  police  regulation  of  mines.109 

Philippine  Islands.  By  the  act  of  July  1,  1902,110  amended  by  the 
act  of  February  6,  1905,111  a  complete  mining  law  code  is  provided  for 
the  islands.  By  it  the  Philippine  Commission  is  authorized  to  make 
mining  regulations  not  in  conflict  with  the  acts,  and  has  made  a  num- 

101  31  Stat.  680,  c.  813. 

102  Sess.  Laws  Okl.  1905,  p.  198,  c.  13. 

103  Const  Okl.  art.  6,  §§  25,  26. 

10*30  Stat.  495,  c.  517;    Ind.  T.  Ann.  St.  1899,  §§  57q-57z91. 

losAct  June  28,  1898,  c.  517,  §  11,  30  Stat.  497. 

10 e Act  June  28,  1898,  c.  517,  §  13,  30  Stat.  498. 

107  CHE-ROKEE  NATION  v.  HITCHCOCK,  187  U.  S.  294,  23  Sup.  'Ct.  115, 
47  L.  Ed.  183. 

los  2  B.  &  C.  Conip.  Or.  1902,  §§  3974-3990;  Laws  1903,  pp.  326-330;  Laws 
1905,  p.  254;  Laws  1907,  pp.  294,  311. 

io92  Pepper  &  Lewis'  Dig.  (Pa.)  pp.  3062ff;  3  Pepper  &  Lewis'  Dig. 
Supp.  p.  417ff ;  4  Pepper  &  Lewis'  Dig.  Supp.  1239ff ;  P.  L,  1903,  180-184 ;  P. 
L.  1905,  344-350,  363-368 ;  P.  L.  1907,  270. 

"032  Stat.  697,  c.  1369ff. 

in  33  Stat.  692,  c.  453ff. 


§  9)  MINING   LAW   STATUS   OF  STATES  AND   TERRITORIES.  45 

her.  The  acts  and  the  insular  legislation  are  given  in  the  appendix. 
The  Code  differs  considerably  from  the  general  American  mining  law. 
It  allows  no  extralateral  rights,  but  to  make  up  for  that  a  greater 
width  of  lode  claim  is  permitted.  Only  one  lode  claim,  not  to  exceed 
300  meters  square,  may  be  located  on  the  same  vein  by  the  same 
locator  or  locators. 

Porto  Rico.  By  the  act  of  July  1,  1902,112  all  public  lands  in  Porto 
Rico  were  ceded  by  the  United  States  to  the  government  of  Porto 
Rico.  There  is  apparently  no  local  legislation,  though  there  seems 
to  be  mineral  land  there.113 

Rhode  Island.    Same  state  of  facts  as  Delaware. 

South  Carolina  was  one  of  the  thirteen  original  states,  so  the  feder- 
al mining  laws  have  never  applied  there.  The  state  legislation 
provides  that,  where  lands  are  actually  mined,  the  gross  proceeds  alone 
shall  be  assessed  and  taxed.114  It  also  regulates  the  employment  of 
children  in  mines. 

South  Dakota  is  a  mining  law  state,  and  has  a  general  mining  code, 
supplementing  the  federal  legislation.115 

Tennessee.  The  entire  area  of  Tennessee  was  originally  public 
domain;  but  the  United  States  donated  the  same  to  the  state,116  and 
the  federal  mining  laws  have  not  applied  there.  The  state  legisla- 
tion provides  for  the  inspection  and  other  police  regulation  of 
mines.117 

Texas  came  into  the  Union  owning  its  own  lands.  The  federal 
land  laws  have  never  applied  there.  The  state  has  a  complete  min- 
ing code.118  It  is  given  in  the  appendix,  and  differs  from  the  federal 
legislation  principally  in  recognizing  no  extralateral  rights. 

Utah  is  a  mining  law  state,  and  has  a  general  mining  code,  supple- 
menting federal  legislation,119  as  well  as  acts  for  the  inspection  and 
other  police  regulation  of  mines.120 

112  32  Stat.  731,  c.  1383. 

us  See  2  Lindley  on  Mines  (2d.  Ed.)  §  878. 

i«Acts  S.  C.  1905,  pp.  996,  997,  §  14. 

115  Rev.  Pol.  Code  S.  D.  §§  2656-2711;   Laws  1903,  pp.  209-213,  cc.  17&-182. 

us  Donaldson,  Public  Domain,  pp.  421-423. 

117  Mill.  &  V.  Code  Tenn.  §§  307-309;  Shannon's  Code  Supp.  (1897-1903) 
pp.  472-502,  683. 

H82  Sayles'  Ann.  Civ.  St.  Tex.  1897,  arts.  3481-3498t;  Sayles'  Ann.  Civ. 
St.  Supp.  1897-1904,  pp.  355,  356;  Gen.  Laws  Tex.  1907,  p.  331,  c.  178. 

n»  Rev.  St.  Utah  1898,  §§  1495-3506;  Laws  1899,  pp.  26-29;  Laws  1901, 
p.  19;  Laws  1903,  p.  9;  Compiled  Laws  Utah  1907,  §§  1495-1506x2. 

120  Rev.  St.  Utah  1898,  §§  1507-1540;  Laws  1901,  pp.  83-91,  150-151; 
Laws  1907,  p.  34 ;  Compiled  Laws  Utah  1907,  §§  910,  1337,  1338,  1507-1540x4. 


46  MINING  LAW  STATUS  OF  STATES  AND  TERRITORIES,  ETC.       (Ch.  2 

Vermont  was  created  out  of  territory  belonging  to  some  of  the 
thirteen  original  states,  and  never  has  been  subject  to  the  federal  min- 
ing or  other  land  laws.  Both  New  Hampshire  and  New  York  had 
claimed  jurisdiction  over  Vermont  territory,  but  whichever  was  en- 
titled necessarily  gave  up  its  rights  to  Vermont  on  the  latter's  admission 
into  the  Union.  The  state  legislation  taxes  mining  and  quarry 
rights.121 

Virginia  was  one  of  the  thirteen  original  states,  so  the  federal 
mining  laws  have  never  applied  there.  The  state  legislation  requires 
the  state  board  of  agriculture  to  collect  minerals  and  assay  them  for  the 
benefit  of  the  owners,  provides  for  the  assessment  of  taxes  on  mineral 
lands  and  the  sale  or  lease  of  infants'  mineral  lands,  and  contains  cer- 
tain police  regulations.122 

Washington  is  a  mining  law  state,  and  has  a  general  mining  code, 
supplementing  federal  legislation,128  and  statutes  for  the  inspection 
and  other  police  regulation  of  mines,  providing  for  a  mining  bureau, 
giving  special  rights  to  mining  corporations,  etc.12* 

West  Virginia  was  carved  out  of  Virginia,  one  of  the  thirteen 
original  states,  and  was  never  subject  to  the  federal  mining  laws. 
It  succeeded  to  the  rights  of  Virginia  in  undisposed-of  lands.  The 
state  legislation  provides  for  the  inspection  and  other  police  regula- 
tion of  coal  mines.125 

Wisconsin.  For  federal  legislation  and  experience,  see  Michigan 
supra.  The  state  legislation  covers  a  number  of  mining  matters. 
Among  other  things,  it  provides  that  corporations  may  be  formed  for 
mining,  smelting,  quarrying,  and  other  like  business.  It  lays  down 
rules  to  govern  mining  contracts,  provides  for  the  condemnation  of 
water-ways,  for  drainage,  etc.,  imposes  criminal  penalties  for  digging 

121  V.  S.  1894,  §  365;   Laws  1900,  pp.  10-12,  No.  12. 

122  1  va.  Code,  1904,  §§  1783a,  1783g;   2  Va.  Code  1904,  §§  2570-2572,  2616- 
2626,  3657bb. 

123  i  Ballinger's  Ann.  Codes  &  St.  Wash.  §§  3151-3157  (Pierce's  Code,  §§ 
6432-6439) ;    Laws  1899,  pp.  47,  69,  155,  337,  cc.  34,  45,  96,  147 ;    Laws  1901, 
p.  292,  c.  137. 

124  Ballinger's  Ann.  Codes  &  St.  Wash.  §§  179-182,  3145-3150,  3158-3211, 
4081,   4280-1284  (Pierce's  Code,   §§   6493,  6494,  6497,   6498,   6501-6504,  6495- 
6496a,  6499,   6500,  6511,  6513,  6516,  6509,  6515,  6512,  6506,  6505,  6510,  6514, 
6517,    6519,   6522,   6524,   6520,   6521,   6471-6479,    6454-6470);    Laws    1907,   pp. 
130,  203,  cc.  77,  105. 

12  5  Code  W.  Va.  1899,  pp.  1045-1061;  Laws  1901,  pp.  84-86,  142,  224-234, 
cc.  31,  57,  106  (Code  1906,  §§  420-429,  468,  404,  409,  410,  419);  Laws  1903, 
p.  163,  c.  51  (Code  1906,  §  471) ;  Laws  1905,  pp.  426-430,  491,  cc.  46,  75  (Code 
1906,  §§  400-403,  455-458). 


§  9)  MINING  LAW   STATUS   OF  STATES   AND  TERRITORIES.  47 

up,  severing,  or  carrying  away  minerals  from  public  lands,  or  lands 
belonging  to  or  lawfully  occupied  by  another,  prescribes  rules  to  be 
followed  in  the  case  of  conflicting  claims  to  mining  grounds,  requires 
smelters  to  keep  accounts  of  ores,  regulates  the  employment  of  chil- 
dren in  mines,  etc.120 

Wyoming  is  a  mining  law  state,  and  has  a  general  mining  code,  sup- 
plementing federal  legislation,127  and  statutes  for  the  inspection  and 
other  police  regulation  of  coal  mines.128 

1261  St.  Wis.  1898,  §§  220,  1379(1),  1647-1657,  1728a;  2  St.  Wls.  1898,  §§ 
4441,  4442;  Sanborn's  St.  Supp.  1906,  §§  1042J,  1647a. 

127  Rev.   St.   Wyo.   1899,  §§   2532-2561;    Laws  1901,  pp.  39,   104,  105,  cc. 
41,  100. 

128  Rev.  St  Wyo.  1899,  §•§   110-115,  2562-2596;    Laws  1903,  pp.  9,  18-21, 
31-33,  101,  cc.  6,  23,  35;    Laws  1905,  p.  100,  c.  58. 


48  LAND  DEPARTMENT  AND  PUBLIC  SURVEYS.  (Ch.  3 

CHAPTER  III. 
THE  LAND  DEPARTMENT  AND  THE  PUBLIC  SURVEYS. 

10.  The  Land  Department. 

11.  The  Attitude  of  the  Courts  Toward  the  Land  Department 
12. .  The  System  of  Public  Land  Surveys. 

13.    The  Location  of  District  Land  Offices. 

THE   LAND   DEPARTMENT. 

10.  The  land  department  is  a  branch  of  that  department  of  the  federal 
government  of  which  the  Secretary  of  the  Interior  is  the  head. 
The  chief  functions  of  the  land  department  are  to  attend  to 
the  survey  of  the  public  lands,  to  supervise  land  entries,  and 
to  issue  patents.  Under  the  Secretary  of  the  Interior  is  the 
Commissioner  of  the  General  Land  Office,  and  subordinate  to 
the  latter,  are  the  surveyors  general  of  the  different  districts 
and  the  registers  and  receivers  of  the  local  land  offices. 

All  proceedings  begin  in  the  survey  and  land  districts,  and  reach  the 
Commissioner  of  the  General  Land  Office  on  appeal  or  in  due 
course  of  ex  parte  procedure.  In  proper  cases  an  appeal  may 
be  taken  to  the  Secretary  of  the  Interior.  All  proceedings  are 
governed  by  the  regulations  of  the  land  department. 

Preliminary  to  an  understanding  of  our  subject,  it  is  desirable  to 
know  something  about  the  land  department  of  the  national  govern- 
ment, as  that  is  intrusted  by  Congress  with  the  management  and  sale 
of  the  public  lands  of  the  United  States.  The  land  department  has 
been  since  1849  a  branch  of  the  Interior  Department  of  the  United 
States  government.1  Prior  to  that  time  it  was  under  the  Treasury 
Department. 

The  Secretary  of  the  Interior. 

The  head  of  the  land  department  is,  of  course,  the  Secretary  of 
the  Interior,  who  represents  the  President  of  the  United  States.  The 
Secretary  is  charged  with  the  supervision,  among  other  things,  of  the 
public  business  relating  to  "the  public  lands,  including  mines."  2  The 

1  Act  March  3,  1849,  c.  108,  9  Stat.  395 ;    Rev.  St.  U.  S.  §  437  (U.  S.  Comp. 
St.  1901,  p.  248)  ff.    Compare  U.  S.  v.  Schlierholz  (D.  C.)  133  Fed.  333. 

2  Rev.  St.  U.  S.  §  441  (U.  S.  Comp.  St.  1901,  p.  252).     See  Knight  v.  U.  S., 
142  U.   S.  161,   12  Sup.   Ct.  258,  35  L.  Ed.  974.     "Further,   it  must  be  re- 
membered that  the  general  supervision  of  the  affairs  of  the  land  department 
is  now  vested  in  the  Secretary  of  the  Interior,   and  that,  unless  Congress 
clearly  designates  some  other  officer  to  act  in  respect  to  such  matters  it  will 


§  10)  THE   LAND   DEPARTMENT.  49 

Secretary  of  the  Interior  is  represented  in  the  land  department  by  as- 
sistant secretaries. 

The  Commissioner  of  the  General  Land  Office. 

Under  the  Secretary  of  the  Interior  is  the  Commissioner  of  the 
General  Land  Office,  who,  under  direction  of  the  Secretary,  is  to 
perform  "all  executive  duties  appertaining  to  the  surveying  and  sale 
of  the  public  lands  of  the  United  States,  or  in  any  wise  respecting 
such  public  lands,  and  also  such  as  relate  to  private  cla'ims  of  land, 
and  the  issuing  of  patents  for  all  grants  of  land  under  the  authority 
of  the  government." 3  An  assistant  commissioner  of  the  General 
Land  Office  and  other  subordinate  officers  are  provided  for.4 

The  Surveyor  General. 

The  Commissioner  of  the  General  Land  Office  being  charged,  as 
above,  with  the  executive  duties  appertaining  to  the  surveying,  as 
well  as  the  sale,  of  the  public  lands,  it  seems  to  be  clear  that  the 
surveyors  general  appointed  in  the  different  states  and  territories  by 
the  President,  one  for  each  survey  district,  are  subordinate  to  the 
Commissioner  of  the  General  Land  Office.5  The  surveyors  general 
appoint  the  deputy  mineral  surveyors,  subject  to  review  by  the  General 
Land  Office.6  Other  officers  under  the  Commissioner  of  the  General 
Land  Office  are  the  registers  and  receivers  of  the  various  local  land  * 
offices,7  who  have  to  reside  at  the  place  where  the  land  office  for 
which  they  are  appointed  is  kept.8 

Registers  and  Receivers. 

When  controversies  over  land  arise,  it  is  in  the  local  land  offices 
that  they  start.  "A  local  land  office  is  an  office  occupied  by  two  of- 
ficers. It  is  the  office  of  the  register,  and  also  of  the  receiver."  •  The 
duties  of  the  registers  and  receivers  are  distinct,  the  register  being 
primarily  a  temporary  recorder  (though,  since,  sooner  or  later,  all  pa- 
pers are  transmitted  to  the  General  Land  Office,  and  only  plat  and 
tract  books  remain  permanently  at  the  local  land  office,  the  local  office 
is  not  strictly  a  place  of  record),  and  the  receiver  being  primarily  a 
treasurer ;  but  the  two  officers  must  act  together  for  so  many  purposes 

be  assumed  that  he  is  the  officer  to  represent  the  government."    Johanson 
V.  Washington,  190  U.  S.  179,  185,  23  Sup.  Ct.  825,  47  L.  Ed.  1008. 
a  Rev.  St.  U.  S.  §  453  (U.  S.  Comp.  St.  1901,  p.  257). 

*  U.  S.  Comp.  St.  1901,  p.  256 ;   U.  S.  Comp.  St.  Supp.  1907,  p.  61. 
»  Craigin  v.  Powell,  128  U.  S.  691,  9  Sup.  Ct.  203,  32  L.  Ed.  566. 
«  Robert  Gorlinski,  20  Land  Dec.  Dep.  Int.  283. 

f  Rev.  St.  U.  S.  §§  2234-2237  (U.  S.  Comp.  St  1901,  p.  1366).  See  list  of 
land  offices  in  section  13  of  this  chapter. 

«  Rev.  St  U.  S.  §  2235  (U.  S.  Comp.  St.  1901,  p.  1366). 

•  Paris  Meadows  et  al.,  9  Land  Dec.  Dep.  Int.  41,  44, 

COST.MlN.] 


50  LAND  DEPARTMENT  AND  PUBLIC  SURVEYS.        (Ch.  3 

that  it  is  held  that  "the  action  of  each  is  necessary  within  their  appro- 
priate spheres  to  the  administration  of  the  office,"  10  and  that  a  vacancy 
in  the  office  of  either  the  register  or  the  receiver  disqualifies  the  re- 
maining incumbent  from  performing  the  duties  of  his  own  office 
until  the  vacancy  is  filled.11  If  both  offices  are  filled,  it  seems  that  the 
register  and  receiver  "can  act  independently  and  separately  in  most 
of  the  matters  pertaining  to  their  duties  in  the  land  office.  They 
need  not  act  jointly  in  administering  oaths,  or  in  examining  wit- 
nesses, or  in  hearing  testimony,  for  all  testimony  is  required  to 
be  reduced  to  writing  and  cases  may  be  decided  upon  the  record  so 
made;  but  in  rendering  opinions  and  publishing  decisions  on  matters 
affecting  the  rights  or  interests  of  adverse  parties  the  law  contem- 
plates that  they  shall  act  jointly."  12  Both  officers  need  not  act  sim- 
ultaneously. "The  receiver  may  act  at  one  time,  and  the  register  at 
another;  but  both  must  act  before  the  case  is  concluded  and  the 
papers  signed  upon  which  the  patent  is  subsequently  issued."13 

The  practice  before  these  officers  is  governed  by  the  rules  of  the 
General  Land  Office ; 14  all  testimony  offered  being  received,  sub- 
ject to  their  rulings  on  its  admissibility.  All  papers  in  matters  before 
them  are  forwarded,  sooner  or  later,  to  the  General  Land  Office,  where 
they  remain. 

Appeals. 

Appeal  from  the  registers  and  receivers  lies  to  the  Commissioner 
of  the  General  Land  Office.  The  latter's  decision  may  be  reviewed 
by  the  Secretary  of  the  Interior,  and  perhaps  there  may  be  an  ap- 
peal "under  special  circumstances  to  the  President." 1B  Congress 
has,  of  course,  the  power  at  any  time  to  withdraw  a  contest  from  the 
land  department  and  determine  for  itself  the  rights  of  the  parties.* 

10  Christian  F.  Ebinger,  1  Land  Dec.  Dep.  Int.  150. 

11  Graham  v.  Carpenter,  9  Land  Dec.  Dep.  Int.  365 ;    Smith  v.  McKerracher, 
20  Land  Dec.  Dep.  Int.  276. 

12  Peters  v.  United  States,  2  Okl.  116,  131,  33  Pac.  1031. 

is  Smith  v.  United  States,  170  U.  S.  372,  377,  18  Sup.  Ct.  626,  42  L.  Ed. 
1074;  Potter  v.  United  States,  107  U.  S.  126,  1  Sup.  Ct.  524,  27  L.  Ed.  230. 

i*  Department  mineral  land  regulations  must  be  appropriate,  reason- 
able, and  within  the  limitation  of  the  law  for  the  enforcement  of  which  they 
are  provided,  or  they  are  void.  Anchor  v.  Howe  (C.  C.)  50  Fed.  366. 

IB  Shepley  v.  Cowan,  91  U.  S.  330,  340,  23  L.  Ed.  424. 

*  Emblen  v.  Lincoln  Land  Co.,  102  Fed.  559,  42  C.  O.  A,  499. 


§  11)         ATTITUDE   OF   COUR1S  TOWARD   LAND   DEPARTMENT.  61 


ATTITUDE  OF  THE  COURTS  TOWARD  THE  LAND  DEPARTMENT. 

11.  If  there  lias  been  no  fraud  nor  imposition,  the  courts  regard  all 
decisions  of  the  land  department  on  questions  of  fact  as  con- 
clusive. They  will  give  effect  to  those  decisions,  despite  errors 
of  law,  unless  the  courts  are  convinced  that  but  for  the  errors 
of  law  the  decisions  would  have  been  the  other  way,  or  unless 
the  land  department  has  exceeded  its  jurisdiction.  The  courts, 
moreover,  incline  to  accept  the  long-continued  construction 
placed  by  the  land  department  on  ambiguous  statutes. 

As  we  have  seen,  the  chief  function  of  the  land  department  is 
to  supervise  land  entries  and  to  issue  patents.  In  determining  be- 
tween different  classes  of  claimants  whether  land  is  mineral  or  not, 
and  whether,  if  mineral,  an  applicant  is  entitled  to  a  patent,  the  land 
department  is  acting  in  a  quasi  judicial  capacity.  Its  chief  function 
is  that  of  a  jury,  namely,  to  investigate  and  pass  upon  the  facts. 

If  there  has  been  no  fraud  nor  imposition,  all  questions  of  fact 
decided  by  the  department  are  regarded  by  the  courts  as  conclu- 
sively settled.18  Even  though  questions  of  law  are  mixed  with  the 
questions  of  fact,  and  the  questions  of  law  may  have  been  wrongly 
decided,  still,  if  the  courts  cannot  say  that  but  for  an  error  of  law 
the  case  must  have  been  decided  the  other  way,  the  courts  will  not 
interfere.17  While,  of  course,  any  action  of  the  land  department 
may  be  attacked  on  the  ground  that  it  was  beyond  the  jurisdiction 
of  that  branch  of  the  government,  the  presumption  is  in  favor  of 

i«  DB  CAMERA  v.  ROGERS,  189  U.  S.  119,  23  Sup.  Ot.  519,  47  L,  Ed.  734; 
Gardner  v.  Bonestell,  180  U.  S.  362,  21  Sup.  Ct.  399,  45  L.  Ed.  574;  Moss  v. 
Dowman,  176  U.  S.  413,  20  Sup.  Ct.  429,  44  L.  Ed.  526;  Johnson  v.  Drew, 
171  U.  S.  93,  18  Sup.  Ct  800,  43  L.  Ed.  88;  Stewart  v.  McHarry,  159  U.  S. 
643,  16  Sup.  Ct.  117,  40  L.  Ed.  290;  Carr  v.  Fife,  156  U.  S.  494,  15  Sup.  Ct.  427, 
39  L.  Ed.  508;  Lee  v.  Johnson,  116  U.  S.  48,  6  Sup.  Ct.  249,  29  L.  Ed.  570; 
Moore  v.  Robbins,  96  U.  S.  530,  24  L.  Ed.  848;  Peyton  v.  Desmond,  129  Fed. 
1,  63  C.  C.  A.  651 ;  Mineral  Farm  Min.  Co.  v.  Barrick,  33  Colo.  410,  80  Pac. 
1055;  Jeffords  v.  Hine,  2  Ariz.  162,  11  Pac.  351.  See  Golden  Reward  Min. 
Co.  v.  Buxton  Min.  Co.  (C.  C.)  79  Fed.  868.  While  the  land  department  de- 
cisions are  subject  to  review  for  fraud,  mistakes,  or  other  equitable  ground, 
Estes  v.  Timmons,  12  Okl.  537,  73  Pac.  303,  it  seems  that  perjury  during  the 
hearing  before  the  land  department  is  not  ground  enough,  Oagle  v.  Dunham, 
14  Okl.  610,  78  Pac.  561;  Kennedy  v.  Dickie,  34  Mont  205,  85  Pac.  982. 
Compare  Cragie  v.  Roberts  (Cal.  App.)  92  Pac.  97. 

IT  MARQUEZ  v.  FRISBIE,  101  U.  S.  473,  476,  25  L.  Ed.  800,  where  the 
court  says:  "It  is  a  sound  principle  that  where  there  is  a  mixed  question 
of  law  and  fact,  and  the  court  cannot  so  separate  it  as  to  see  clearly  where 
the  mistake  of  law  is,  the  decision  of  the  tribunal  to  which  the  law  has 
confided  the  matter  is  conclusive." 


52  LAND   DEPARTMENT  AND  PUBLIC   SURVEYS.  (Ch.  3 

jurisdiction.18  Where  the  matter  is  within  the  jurisdiction  of  the  land 
department,  and  yet  that  department  has  made  a  clear  and  controlling 
mistake  of  law,  the  courts  in  a  proper  case  will  correct  the  error.19 
In  Hawley  v.  Diller,  the  United  States  Supreme  Court  says:  "It 
is  suggested  that  the  order  of  the  land  department  canceling  the  en- 
try was  based  upon  a  misconstruction  of  the  law.  If  it  had  been,  then 
the  error  could  be  corrected  by  the  courts."  20 

The  attitude  of  the  courts  towards  the  land  department  is,  how- 
ever, one  of  great  friendliness,  even  on  matters  of  law.  They  are 
not  bound  by  the  land  department's  construction  of  the  land  statutes, 
yet  when  the  statutes  are  ambiguous,  and  the  land  department  has 

is  KING  v.  McANDREWS,  111  Fed.  860,  50  C.  O.  A.  29;  New  Dunderberg 
Min,  Co.  v.  Old,  79  Fed.  598,  25  C.  C.  A.  116. 

is  Sanford  v.  Sanford,  139  U.  S.  642,  647,  11  Sup.  Ct  666,  35  L.  Ed.  290; 
Baldwin  v.  Starks,  107  U.  S.  463,  465,  2  Sup.  Ct.  473,  27  L.  Ed.  526;  Lee 
v.  Johnson,  116  U.  S.  48,  6  Sup.  Ct.  249,  29  L.  Ed.  570;  Southern  Cross  Gold 
Min.  Co.  of  Kentucky  v.  Sexton,  147  Cal.  758,  82  Pac.  423;  Hoyt  v.  Weyer- 
haeuser (C.  C.  A.)  161  Fed.  324.  See  Gonzales  v.  French,  164  U.  S.  338,  17  Sup. 
Ct.  102,  41  L.  Ed.  458. 

20  Hawley  v.  Diller,  178  U.  S.  476,  489,  20  Sup.  Ct.  986,  44  L.  Ed.  1157. 
Compare  Wisconsin  Cent.  R.  Oo.  v.  Forsythe,  159  U.  S.  46,  61,  15  Sup.  Ct 
1020,  40  L.  Ed.  71. 

"A  patent  to  land  of  the  disposition  of  which  the  land  department  has  ju- 
risdiction is  both  the  judgment  of  that  tribunal  and  a  conveyance  of  the 
legal  title  to  the  land;  but  the  judgment  and  conveyance  of  the  department 
do  not  conclude  the  rights  of  the  claimants  to  the  land.  They  rest  on  es- 
tablished principles  of  law  and  fixed  rules  of  procedure,  which  condition 
their  initiation  and  prosecution,  the  application  of  which  to  the  facts  of 
each  case  determines  its  right  decision;  and  If  the  officers  of  the  land 
department  are  induced  to  issue  a  patent  to  the  wrong  party  by  an  erroneous 
view  of  the  law,  or  by  a  gross  or  fraudulent  mistake  of  the  facts,  the  right- 
ful claimant  is  not  remediless.  He  may  avoid  the  decision  and  charge  the 
legal  title  derived  from  the  patent  which  they  issue  with  his  equitable  title 
to  it  on  either  of  two  grounds:  (1)  That  upon  the  facts  found,  conceded,  or 
established  without  dispute  at  the  hearing  before  the  department,  its  officers 
fell  into  an  error  in  the  construction  of  the  law  applicable  to  the  case, 
which  caused  them  to  refuse  to  issue  the  patent  to  him,  and  to  give  it  to 
another;  or  (2)  that  through  fraud  or  gross  mistake  they  fell  into  a  mis- 
apprehension of  the  facts  proved  before  them,  which  had  the  like  effect. 
If  he  would  attack  the  patent  on  the  latter  ground,  and  avoid  the  depart- 
ment's finding  of  facts,  however,  he  must  allege  and  prove,  not  only  that 
there  was  a  mistake  in  the  finding,  but  [also]  the  evidence  before  the  de- 
partment from  which  the  mistake  resulted,  the  particular  mistake  that  was 
•  made,  the  way  in  which  it  occurred,  and  the  fraud,  if  any,  which  induced 
it,  before  any  court  can  enter  upon  the  consideration  of  any  issue  of  fact  de- 
termined by  the  officers  of  the  department  at  the  hearing."  Sanborn,  J., 
in  James  v.  Germania  Iron  Co.,  107  Fed.  597,  600,  601,  46  C.  C.  A.  476,  479. 
Patents  will  not  be  set  aside  for  mistake,  except  where  the  proof  is  plain 
and  convincing  beyond  reasonable  controversy.  Thallmann  v.  Thomas,  111 
Fed.  277,  49  C.  C.  A.  317. 


§  11)         ATTITUDE   OF   COURTS   TOWARD   LAND   DEPARTMENT.  53 

consistently  and  for  a  considerable  length  of  time  followed  a  given 
construction  of  them,  particularly  where  the  adoption  of  the  con- 
struction was  practically  contemporaneous  with  the  passage  of  the 
statutes,  the  courts  will  accept  the  department's  construction.21 

The  court's  aid  may  be  sought  by  litigants  either  before  patent  or 
after  patent.  Prior  to  the  land  department's  loss  of  jurisdiction 
over  a  matter  by  the  issuance  of  a  patent 22  or  other  final  action,23 
the  courts  refuse,  in  general,  to  interfere  with  proceedings  in  the 
land  department.2*  Under  the  forcible  entry  and  detainer  statutes, 
and  by  injunction,  however,  the  courts  will  prevent  wrongful  inter- 
ference with  the  actual  possession  of  the  land  affected  pending  the 
land  office's  determination  of  the  questions  before  that  office.25  After 
the  issuance  of  patent  no  disputed  question  of  fact  presented  to  the 
land  department  can  be  litigated  in  the  courts.  The  patent,  if  valid 
on  its  face  and  issued  under  a  law  authorizing  its  issuance,  cannot 
be  collaterally  attacked,  but  may  be  subject  to  several  kinds  of  direct 
attack.  For  instance,  the  United  States  may  file  a  bill  in  equity  to 
annul  the  patent  because  obtained  by  fraud,26  by  inadvertence  or  mis- 
take,27 or  even,  it  seems,  because  issued  through  erroneous  views  of 

21  Hewitt  v.  Schultz,  180  U.  S.  139,  21  Sup.  Ct  309,  45  L.  Ed.  463;  Hastings 
&  D.  R.  Co.  v.  Whitney,  132  U.  S.  357,  366,  10  Sup.  Ct.  112,  33  L.  Ed.  363 ; 
U.  S.  v.  Burkett  (D.  C.)  150  Fed.  208;    McFadden  v.  Mountain  View  Mining 
&  Milling  Co.,  97  Fed.  670,  38  C.  C.  A.  354. 

22  The  issuance  of  patent  does  not  necessarily  mean  here  the  actual  de- 
livery of  the  patent,  but  may  precede  such  delivery.    United  States  v.  Schurz, 
102  U.  S.  378,  26  L.  Ed.   167.     A  patent,  duly  issued  and  recorded,  passes 
title  without  delivery.     United  States  v.  Laam  (C.  C.)  149  Fed.  581;    Rogers 
v.  Clark  Iron  Oo.  (Minn.)   116  N.  W.  739.     Until  title  passes  the  land  de- 
partment retains  jurisdiction  over  the  lands.     Peyton  v.  Desmond,  129  Fed. 
1,  63  C.  C.  A.  651. 

23  AS  by  an  irrevocable  ^decision.     Noble  v.  Union  River  Logging  R.  Co., 
147  U.  S.  165,  13  Sup.  Ct.  271,  37  L.  Ed.  123. 

24HUMBIRD  v.  AVERT,  195  U.  S.  480,  25  Sup.  Ct.  123,  49  L.  Ed.  286; 
Cosmos  Exploration  Co.  v.  Gray  Eagle  Oil  Co.,  190  U.  S.  301,  24  Sup.  Ct.  860, 
47  L.  Ed.  1064;  Marquez  v.  Frisbie,  101  U.  S.  473,  25  L.  Ed.  800;  United 
States  v.  Schurz,  102  U.  S.  378,  395,  26  L.  Ed.  167;  Northern  Lumber  Co. 
v.  O'Brien  (C.  C.)  124  Fed.  819;  Wallula  Pac.  R.  Co.  v.  Portland  &  S.  R. 
Co.  (C.  C.)  154  Fed.  902. 

25  Zimmerman  v.  McCurdy,  15  N.  D.  79,  106  N.  W.  125;  Fulmele  v.  Camp, 
20  Colo.  495,  39  Pac.  407 ;    Northern  Pac.  R.  Co.  v.  Soderberg  (C.  C.)  86  Fed. 
49 ;    Colwell  v.  Smith,  1  Wash.  T.  92 ;    Utah,  N.  &  C.  R.  Co.  v.  Utah  &  C.  R. 
Co.  (C.  C.)  110  Fed.  879;    Northern  Lumber  Co.  v.  O'Brien  (C.  C.)  124  Fed. 
819 ;    Jones  v.  Hoover  (C.  C.)  144  Fed.  217 ;    Kitcherside  v.  Myers,  10  Or.  21. 
See  Marquez  v.  Frisbie,  101  U.  S.  473,  475,  25  L.  Ed.  800. 

26  United  States  v.   Iron  Silver  Min.  Co.,  128  U.  S.  673,  9  Sup.  Ct.  195, 
32  L.  Ed.  571 ;    U.  S.  v.  Maxwell  Land  Grant  Co.,  121  U.  S.  325,  7  Sup.  Ct. 
1015,  30  L.  Ed.  949.     See  San  Pedro  &  Canon  del  Agua  Co.  v.  U.  S.,  146  U. 
S.  120,  13  Sup.  Ct.  94,  36  L.  Ed.  911. 

27  Germania  Iron   Co.  v.  United   States,  165  U.   S.  379,  17  Sup.  Ct.  337, 


54  LAND   DEPARTMENT   AND   PUBLIC   SURVEYS.  (Ch.  3 

law.28  Then,  again,  where  in  fraud  of  the  real  owner,  or  by  mistake 
of  fact  or  mistake  of  law,  a  patent  has  been  issued  to  a  third  person, 
a  court  of  equity  will  hold  the  patentee  a  trustee  for  the  real  owner,2* 
or  allow  the  real  owner  to  quiet  title.30 


THE  SYSTEM  OF  PUBLIC  LAND  SURVEYS. 

12.  The  United  States  system  of  public  land  surveys  calls  for  town- 
ships six  miles  square,  and  the  subdivision  of  each  township 
into  thirty-six  sections,  each  a  mile  square.  The  sections  in 
turn  are  subdivided  into  halves,  quarters,  etc.  The  surveyors, 
in  furnishing  the  details  of  the  survey,  certify  to  the  surveyor 
general  the  mineral  or  nonmineral  character  of  the  land;  and 
the  surveyor  general  returns  the  land  as  mineral  or  nonmineral 
accordingly.  The  surveyor  general's  return  accompanies  the 
plats  of  survey  transmitted  to  the  proper  land  offices,  and  the 
land  officers  treat  that  return  as  prima  facie  evidence  of  the 
nature  of  the  soil. 

By  section  2319,  Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901,  p.  1424), 
"all  valuable  mineral  deposits  in  lands  belonging  to  the  United  States, 
both  surveyed  and  unsurveyed,  are  hereby  declared  to  be  free  and 
open  to  exploration  and  purchase,"  etc.  It  is  desirable,  therefore,  to 
say  a  word  first  about  surveyed  and  unsurveyed  lands.  It  was  by  the 
placer  act  of  July  9,  1870  (16  Stat.  217,  c.  235),  that  provision  was 
made  for  extending  the  public  surveys  over  mineral  lands. 

Survey  Subdivisions. 

The  United  States  system  of  surveys  provides  for  the  division  of 
the  public  lands  into  townships  six  miles  square,  the  townships  con- 
stituting the  unit  of  survey,  and  being  divided  by  lines  run  north  and 
south  according  to  the  true  meridian  and  by  lines  run  east  and  west 
to  cross  the  north  and  south  lines  at  right  angles.  Each  township  is 
numbered,  and  is  subdivided  into  thirty-six  sections,  each  a  mile 
square,  and  each  numbered.  The  following  diagram  shows  a  town- 
ship. 

/ 

41  L.  Ed.  754;  Williams  v.  United  States,  138  U.  S.  514,  11  Sup.  Ct.  457, 
34  L.  Ed.  1026. 

as  United  States  v.  Winona  &  St.  P.  R.  Co.,  67  Fed.  948,  959,  15  C.  C.  A. 
96. 

29BERNIER  v.  BERNIER,  147  U.  S.  242,  13  Sup.  Ct.  244,  37  L.  Ed.  152; 
United  States  v.  Citizens'  Trading  Co.  (Okl.)  93  Pac.  448;  James  v.  Ger- 
mania  Iron  Co.,  107  Fed.  597,  46  C.  C.  A.  476,  and  cases  cited ;  Hoyt  v.  Weyer- 
haeuser (C.  C.  A.)  161  Fed.  324.  See  Le  Marchel  v.  Teegarden  (C.  C.)  133 
Fed.  826. 

so  DULUTH  &  IRON  RANGE  R.  CO.  v.  ROY,  173  U.  S.  587,  19  Sup.  Ct. 
549,  43  L.  Ed.  820;  Peabody  Gold  Min.  Co.  v.  Gold  Hill  Min.  Co.  (C.  C.) 
106  Fed.  242. 


12) 


SYSTEM   OF   PUBLIC   LAND   SURVEYS. 

FIGURE:  No.  I 


55 


6 

5 

^ 

3 

2 

) 

7 

6 

? 

/  o 

// 

/2 

18 

11 

J6 

15 

/f 

/3 

/<? 

20 

21 

22 

23 

24- 

30 

2? 

2.8 

27 

26 

25 

31 

32 

33 

3.4- 

35 

36 

The  sections  are  numbered,  beginning  at  the  extreme  northeast 
corner  and  ending  at  the  extreme  southeast  corner  of  the  township. 
Each  section  contains  640  acres,  if  accurately  surveyed,  and  is  sub- 
divided into  half  sections  of  320  acres,  and  these  latter  into  quarter 
sections  of  160  acres  each.  These  quarter  sections  are  again  sub- 
divided into  halves  and  quarters.  In  the  subdivision  of  a  quarter  sec- 
tion, to  make  half  quarter  sections,  the  line  is  run  north  and  south; 
and  in  case  of  the  division  of  half  of  a  quarter  section  (80  acres)  the 
line  of  division  must  run  east  and  west.31 

Many  inaccuracies  exist  in  the  surveys  as  made.  The  courts,  how- 
ever, cannot  make  surveys,  nor  correct  surveys  already  made,  as 
those  matters  are  exclusively  in  the  jurisdiction  of  the  land  depart- 
ment.82 A  local  surveyor  must  follow  the  official  field  notes  in  lo- 

si  Donaldson,  Public  Domain,  582.  For  a  township  plat  showing  the 
effect  on  the  survey  of  a  lake  in  the  township,  see  KIRWAN  v.  MURPHY, 
189  U.  S.  35,  23  Sup.  Ct.  599,  47  L.  Ed.  698.  For  a  plat  showing  the  effect 
of  a  river,  see  Johnson  v.  Hurst,  10  Idaho,  308,  77  Pac.  784,  787.  Except  where 
special  circumstances  necessitate  smaller  fractional  lots,  the  smallest  survey 
subdivision  is  a  40-acre  tract.  Hopper  v.  Nation  (Kan.)  96  Pac.  77.  The  minor 
subdivisions  are  not  marked  on  the  ground,  but  appear  on  the  plats  in  the 
surveyor  general's  office. 

«  a  KIRWAN  v.  MURPHY,  189  U.  S.  35,  23  Sup.  Ct  599,  47  L.  Ed.  698^ 


56          LAND  DEPARTMENT  AND  PUBLIC  SURVEYS.        (Ch.  3 

eating  section  and  other  corners,  without  regard  to  whether  this 
gives  more  land  to  one  subdivision  than  to  another;  for  he  is  not 
authorized  to  correct  -what  the  government  has  done.33  A  plat  of 
survey  made  and  approved  by  the  land  department  cannot  be  im- 
peached, except  upon  a  direct  proceeding  brought  for  that  purpose.f 
And  the  land  department  itself  cannot,  by  correcting  a  survey,  take 
away  from  patentees  any  part  of  the  tracts  patented  to  them.34 

The  Surveyor's  Return. 

The  surveyors  were  charged  under  the  ordinance  of  May  20,  1785, 
with  the  duty  of  noting  all  mines,  salt  licks,  and  mill  seats,  and  the 
instructions  to  surveyors  general  require  those  who  conduct  the  actual 
surveys  in  the  field  to  embody  in  their  notes  of  survey  a  general 
description  of  the  soil,  timber,  minerals,  water,  and  main  geological 
features  of  each  township,  and  a  particular  description  of  the  qual- 
ity and  extent  of  coal  banks  or  beds,  peat  or  turf  grounds,  minerals, 
and  ores,  and  of  the  diggings  therefor.$  These  field  notes,  with  ac- 
companying topographical  sketch  of  the  surveyed  country,  if  ap- 
proved, and  the  resulting  township  plats  transmitted  by  the  surveyor 
general  to  the  proper  land  office,  constitute  the  surveyor  general's  re- 
turn. The  lands  thus  returned  by  the  surveyor  general  as  agricultur- 
al, timber,  mineral,  etc.,  are  thereupon  deemed  prima  facie  to  be  what 
he  has  described  them,  though,  of  course,  that  means  no  more  than 
that,  in  the  land  department  at  least,  the  burden  of  proof  is  on  one 
who  would  seek  to  show  the  land  to  be  of  a  different  character  than 
that  ascribed  to  it  by  the  surveyor  general.85  Where  land  is  return- 
ed as  agricultural,  the  one  who  seeks  to  contradict  the  return  must 
show  that  the  land  contains  mineral  which  makes  it  more  valuable 
for  mining  than  for  agriculture;  but  where,  prior  to  the  grant  to  a 
state,  a  legal  location  of  a  mining  claim  has  been  made  on  land  re- 
turned as  agricultural,  the  return  of  the  surveyor  is  overcome  as  be- 
tween the  state  and  the  locator.36  Indeed,  the  prima  facie  value  of 
the  surveyor  general's  return  is  properly  very  slight. 

"When  it  is  considered,"  says  Mr.  Lindley,  "that  sections  of  one 

asYolo  County  v.  Nolan,  144  Cal.  445,  77  Pac.  1006;  Beltz  v.  Mathiowitz, 
72  Minn.  443,  75  N.  W.  699. 

t  McBride  v.  Whitaker,  65  Neb.  137,  90  N.  W.  966. 

si  Kirwan  v.  Murphy,  109  Fed.  354,  48  C.  C.  A.  399  (reversed,  because  case 
for  injunction  not  made  out,  189  U.  S.  35,  23  Sup.  Ct  599,  47  L.  Ed.  698). 

$  Donaldson's  Public  Domain,  575  ff. 

35  Magruder  v.  Oregon  &  C.  R.  Co.,  28  Land  Dec.  Dep.  Int.  174,  177;  Tu- 
lare  Oil  &  Mining  Co.  v.  Southern  Pac.  R.  Co.,  29  Land  Dec.  Dep.  Int.  269: 
Johnston  v.  Morris,  72  Fed.  890,  19  C.  O.  A.  229.  See  Winscott  v.  Northern 
Pac.  R.  Co.,  17  Land  Dec.  Dep.  Int  274;  Caledonia  Min.  Co.  v.  Rowen,  2 
Land  Dec.  Dep.  Int.  714;  Gold  Hill  Quartz  Min.  Co.  v.  Ish,  5  Or.  104,  109. 

Ms  State  of  Washington  v.  McBride,  18  Land  Dec.  Dep.  Int.  199.    But  by 


§  12)  SYSTEM   OF  PUBLIC   LAND   SURVEYS.  57 

mile  square  are  the  smallest  tracts  the  out-boundaries  of  which  the 
law  requires  to  be  actually  surveyed;  that  the  minor  subdivisions  are 
not  surveyed  in  the  field,  but  are  defined  by  law  and  protracted  in  the 
surveyor  general's  office  on  the  township  plats,  the  lines  being  im- 
aginary; that  surveyors,  as  a  rule,  are  neither  practical  miners  nor 
geologists ;  that  they  are  compensated,  not  for  the  value  of  the  infor- 
mation furnished  as  to  the  character  of  the  lands,  but  for  the  number 
of  linear  miles  surveyed  in  the  field;  and  that  their  investigation 
as  to  the  character  of  the  land  is  wholly  superficial,  it  would  seem 
that  but  little  weight  should  be  given  to  these  returns."  8T  And,  in 
view  of 'the  fact  that  Land  Office  Commissioners  have  themselves  com- 
mented on  the  inaccuracy  of  the  returns,  he  adds:  "In  the  light  of 
these  conceded  facts,  it  is  a  marvel  that  either  the  land  department 
or  the  courts  ever  announced  the  doctrine  that  such  returns  were 
prima  facie  evidence  of  anything  save  their  own  inherent  weakness 
and  insufficiency  for  this  purpose."38  Mr.  L/indley  concludes  that, 
"While  the  rule  which  treats  the  surveyor  general's  return  as  estab- 
lishing prima  facie  the  character  of  the  land  is  a  convenient  one  in 
controversies  arising  .between  individuals  over  an  asserted  right  to 
enter  public  lands,  as  determining  upon  whom  rests  the  burden  of 
proof,  it  has  been  productive  of  iniquitous  results  in  administering 
the  colossal  land  grants  to  railroad  companies,  and  we  are  justified  in 
asserting  that  its  force  as  a  universal  rule  has  beeri  materially  weak- 
ened by  the  recent  decisions  of  both  the  land  department  and  the 
courts  of  last  resort."  39 

By  the  mining  acts,  unsurveyed,  as  well  as  surveyed,  lands  are 
thrown  open  to  exploration  and  location.  The  mining  claim  itself 
must  in  any  event  be  surveyed  when  patent  is  applied  for.  Lode  claims 
are  unaffected  by  being  on  surveyed  land ;  but,  because  of  the  placer 
act  provision  that  all  placer  claims  located  under  Act  May  10,  1872, 
c.  152,  §  10,  17  Stat.  94,  shall  conform  as  nearly  as  practicable  to 
the  United  States  system  of  public  land  surveys  and  to  the  rectangular 
subdivisions  of  such  surveys,40  placer  claims  are  affected  by  being 
on  surveyed  lands,  and  must  be  rectangular  when  located  on  unsur- 
veyed land.  That  matter  will  be  taken  up  when  we  consider  placers. 

legal  location  is  meant  one  based  on  such  a  discovery  of -mineral  as  would 
warrant  a  person  of  ordinary  prudence  in  the  further  expenditure  of  his 
labor  and  means  with  a  reasonable  prospect  of  success  in  developing  a  val- 
uable mine.  Magruder  v.  Oregon  &  C.  R.  Co.,  28  Land  Dec.  Dep.  Int.  174, 
citing  Castle  v.  Womble,  19  Land  Dec.  Dep.  Int.  455.  See,  also,  McQuiddy 
v.  State  of  California,  29  Land  Dec.  Dep.  Int.  181. 

87  l  Lindley  on  Mines  (2d  Ed.)  p.  160,  §  106. 

8«  1  Lindley  on  Mines  (2d  Ed.)  p.  162.  Cf.  Field,  J.,  in  Barden  T.  Northern 
Pa<?.  R.  Co.,  154  U.  S.  288,  14  Sup.  Ct.  1030,  38  L.  Ed.  992. 

3»  1  Lindley  on  Mines  (2d  Ed.)  p.  159,  §  106. 

40  Rev.  St.  U.  S.  §  2331  (U.  S.  Comp.  St.  1901,  p.  1432). 


58 


LAND  DEPARTMENT  AND  PUBLIC  SURVEYS. 


(Ch. 


THE  LOCATION  OF  DISTRICT  LAND  OFFICES. 

19.    There  are  United  States  district  land  offices  in  all  the  mining  law 
states  and  territories  and  in  some  others. 

At  the  time  of  going  to  press,  the  district  land  offices  of  the  United 
States  are  located  as  follows: 


ALABAMA. 

FLORIDA. 

MONTANA. 

OREGON. 

Montgomery. 

Gainesville, 

Billings. 

Burns. 

Bozeman. 

La  Grande. 

Glasgow. 

Lakeview. 

ALASKA. 

IDAHO. 

Great  Falls. 

Portland. 

Fairbanks. 
Juneau. 

Blackfoot. 
Boise. 

Helena. 
Kalispell. 

Roseburg. 
The  Dalles. 

Nome. 

Coaur  d'Alene. 
Hailey. 
Lewiston. 

Lewistown. 
Miles  City. 
Missoula. 

SOUTH  DAKOTA. 

ARIZONA. 

Aberdeen. 

Phcenix. 

NEBRASKA, 

Chamberlain. 

IOWA. 

Alliance. 

Lemmon. 

ARKANSAS. 

Des  Homes. 

Broken  Bow. 
Lincoln. 

Mitchell. 
Pierre. 

Camden. 

North  Platte. 

Rapid  City. 

Dardanelle. 

KANSAS. 

O'Neill. 

Harrison. 

Colby. 

Valentine. 

UTAH. 

Little  Rock. 

Dodge  City. 

Salt  Lake  City. 

Topeka. 

NEVADA. 

Vernal. 

Carson  City. 

CALIFORNIA. 

Eureka. 

LOUISIANA. 

NEW  MEXICO. 

WASHINGTON. 

Independence. 
Los  Angeles. 

Natch  itoches. 
New  Orleans. 

Clayton. 
Las  Cruces. 

North  Yakima. 
Olympia. 

Oakland. 

Roswell. 

Seattle. 

Redding. 
Sacramento. 
Susanville. 

MICHIGAN. 
Marquette. 

Santa  Fe\ 
Tucumcari. 

Spokane. 
Vancouver. 
Walla  Walla. 

Visalia. 

NORTH  DAKOTA. 

Waterville. 

MINNESOTA. 

Bismarck. 

COLORADO. 

Cass  Lake. 

Devils    Lake. 

WISCONSIN. 

Del   Norte. 
Denver. 

Crookston. 
Duluth. 

Dickinson. 
Fargo. 

TV.Tir>/-k+ 

Wausau. 

Durango. 
Glenwood  Springs. 
Hugo. 

MISSISSIPPI. 

Minor. 
Williston. 

WYOMING. 
Buffalo. 

Lainar. 

Jackson. 

OKLAHOMA. 

Cheyenne. 

Leadville. 

El  Reno. 

Douglas. 

Montrose. 
Pueblo. 

MISSOURI. 

Guthrie. 
Lawton. 

Evanston. 
Lander. 

Sterling 

Springfield. 

Woodward. 

Sundance. 

§  14)  MINERAL  LANDS  AND   PUBLIC   LAND   GRANTS.  59 


CHAPTER  IV. 

THE  RELATION  BETWEEN  MINERAL  LANDS  AND  THE  PUBLIC  LAND 

GRANTS. 

14-35.    Mexican  Land  Grants. 
16-17.    State  School  Land  Grants. 
18-19.    Railroad  Land  Grants. 

Kinds  of  Land  Grants. 

The  mining  law  statutes  are  but  part  of  the  general  land  legisla- 
tion of  the  United  States.  It  is  impossible  to  understand  them  prop- 
erly without  understanding  the  whole  federal  public  land  system, 
because,  while  only  those  lands  which  contain  mineral  deposits,  and 
which  both  belong  to  the  United  States  and  are  unappropriated  to 
any  other  use,  are  open  to  mining  location,  it  is  impossible  to  ascer- 
tain what  those  lands  are  without  a  discussion  of  all  kinds  of  public 
lands.  A  consideration  of  the  various  dispositions  of  the  United 
States  public  domain  is  essential  to  a  proper  understanding  of  Amer- 
ican mining  law,  and  it  will  be  convenient  to  begin  with  those  known 
under  the  title  of  "Land  Grants."  They  are:  (1)  Mexican  land 
grants ;  (2)  state  school  land  grants ;  (3)  railroad  land  grants. 


MEXICAN  LAND  GRANTS. 

14.  Various  Mexican  land  grants,  protected  by  the  treaty  of  Guada- 
lupe-Hidalgo,  by  the  Gadsden  purchase  treaty,  and  by  the  act 
of  cession  of  Texas,  have  been  adjudicated  either  by  Congress 
itself  or  under  provision  made  by  acts  of  Congress.  Three 
methods  have  been  followed: 

(1)  In  California  there  was  an  investigation  and  determination  of 

facts  by  a  board  of  land  commissioners,   whose   actions  were 
subject  to  review  by  the  United  States  courts. 

(2)  In  Arizona,  Colorado,  and  New  Mexico  prior  to  the  act  of  1891, 

investigations  -were  made  by  the  surveyors  general,  who  report- 
ed to  the  Interior  Department. 

(3)  In  Arizona,  Colorado,  Nevada,  New  Mexico,  Utah,  and  Wyoming 

the  act  of  March   3,    1891,   provided  for  a  Court  of  Private 
Land  Claims  to  pass  upon  the  grants. 

Under  (1)  a  patent  issued;  under  (2)  confirmation  was  by  acts  of 
Congress;  while  under  (3)  the  title  was  in  the  form  of  a  decree 
of  court. 

We  consider  Mexican  land  grants  first,  because  in  those  mining  law 
states  where  Mexican  land  grants  exist  the  public  lands  came  to 
the  United  States  burdened  with  grants.  They  therefore  took  priority 


60  MINERAL   LANDS   AND   PUBLIC   LAND   GRANTS.  (Ch.  A 

over  every  other  claim,  since  the  treaties  of  Guadalupe-Hidalgo  and  of 
the  Gadsden  purchase  with  Mexico  and  the  act  of  cession  of  Texas 
all  imposed  upon  the  United  States  the  obligation  to  protect  titles  to 
lands  acquired  from  Mexico.1 

As  was  to  be  expected,  the  United  States  met  properly  the  obliga- 
tions imposed  upon  it.  Many  land  grants  from  Mexico  were  claimed ; 
most  of  them  being  for  colonization,  or  for  the  purposes  of  stock- 
raising  and  agriculture.  Only  a  few  were  for  mining  ground  as 
such.  The  various  Mexican  land  grant  claims  in  Arizona,  California, 
Colorado,  Nevada,  New  Mexico,  Utah,  and  Wyoming  were  adjudicat- 
ed either  by  Congress  or  under  provision  made  by  acts  of  Congress. 

As  was  also  to  be  expected,  two  great  difficulties  were  experienced 
in  adjudicating  Mexican  land  grants.  One  difficulty  was  to  determine 
which  grants  were  genuine  and  which  were  fraudulent.  The  other 
difficulty  was  to  ascertain  just  what  was  granted  under  the  genuine 
grants,  and  the  chief  reason  for  this  latter  difficulty  was  that  a  num- 
ber of  grants  were  "floats";  i.  e.,  grants  where  the  boundaries  were 
not  yet  defined.  Then,  too,  "many  of  the  so-called  grants  were  of  an 
inchoate  character — what  we  would  call  licenses  or  equities,  not  ripen- 
ed into  grants  proper."  2 

Kinds  of  Mexican  Land  Grants. 

"Mexican  grants  were  of  tfyree  kinds :  (1)  Grants  by  specific  bound- 
aries, where  the  donee  is  entitled  to  the  entire  tract,  whether  it  be  more 
or  less.  (2)  Grants  of  quantity,  as  of  one  or  more  leagues  within  a 
larger  tract,  described  by  what  are  called  'outside  boundaries/  where 
the  donee  is  entitled  to  the  quantity  specified,  and  no  more.  (3)  Grants 
of  a  certain  place  or  rancho  by  name,  where  the  donee  is  entitled  to 
the  whole  tract,  according  to  the  boundaries  given,  or,  if  not  given, 
according  to  its  extent  as  shown  by  previous  possession."  3 

These  different  kinds  of  land  grants  were  dealt  with  variously. 
With  reference  to  the  Mexican  grants  in  California,  Congress  adopted 
in  1851  the  system  which  it  had  previously  followed  in  the  Louisiana 
and  Florida  cessions,4  namely,  that  of  investigation  and  determina- 
tion of  the  facts  by  a  board  of  land  commissioners,  whose  action  was 
subject  to*  review  by  the  United  States  courts.8  With  reference  to 

1  See  Peralta  v.  United  States,  3  Wall.  434,  439,  18  L,  Ed.  221 ;    Knight  v. 
United  Land  Ass'n,  142  U.  S.  161,  186,  12  Sup.  Ct.  258,  35  L.  Ed.  974. 

2  Morrison's  Mining  Rights  (13th  Ed.)  p.  312. 

s  United  States  v.  McLaughlin,  127  U.  S.  428,  448,  8  Sup.  Ct  1177,  32  D. 
Ed.  213. 

*  Donaldson's  Public  Domain-,  375. 

*  Act  March  3,  1851,  c.  41,  9  Stat  631. 


§  14)  MEXICAN   LAND   GRANTS.  61 

New  Mexico,  the  act  of  July  22,  1854,6  provided  for  investigations  of 
Mexican  land  grants  by  the  surveyor  general  for  New  Mexico,  and 
for  reports  by  him  to  the  Interior  Department,  and  by  the  act  of 
February  28,  1861,T  with  reference  to  Colorado,  and  the  act  of  Feb- 
ruary 24,  1863,8  with  reference  to  Arizona,  this  New  Mexico  method 
was  extended  to  Colorado  and  Arizona.  Finally  the  act  of  March  3, 
1891,*  applicable  to  Arizona,  Colorado,  Nevada,  New  Mexico,  Utah, 
and  Wyoming,  provided  for  a  Court  of  Private  Land  Claims  to  pass 
upon  these  asserted  Mexican  grants.  Under  these  various  acts  no 
Spanish  or  Mexican  mining  right  grant  seems  ever  to  have  been  sus- 
tained,10 and  the  only  recognized  grants,  therefore,  were  claimed  for 
colonization  purposes  or  for  stock-raising  and  farming.  Many  of 
these  grants  included  mining  lands,  however,  and  the  effect  of  these 
grants  upon  the  mining  lands  must  be  noted. 

By  the  California  act  all  kinds  of  grants,  whether  perfect  or  in- 
choate, had  to  be  presented  to  the  board  of  commissioners  for  de- 
termination. Patents  were  issued  for  such  as  were  ultimately  con- 
firmed. The  question  then  arises,  what  about  the  mineral  land  em- 
braced in  the  patented  area?  Under  the  law  of  Mexico  all  mines 
belonged  to  the  Mexican  government,  and  by  a  grant  of  the  Mexican 
government  no  title  to  the  minerals  would  pass  to.  the  grantee,  unless 
expressly  so  stated  in  the  patent.11  The  question  then  arose,  did 
the  United  States,  in  confirming  the  Mexican  grants,  retain  the 
title  to  the  minerals,  just  as  the  Mexican  government  would  have 
done,  or  was  the  confirmation  of  a  Mexican  land  grant  itself  a  grant 
from  the  United  States,  with  all  that  a  grant  from  the  United  States 
would  imply?  At  an  early  date  (1861)  the  California  Supreme 
Court,  in  the  case  .of  Moore  v.  Smaw,  decided  that  it  was  a  grant 
from  the  United  States,  and  that  by  a  grant  from  the  United  States 
all  mineral  lands  embraced  within  the  granted  limits  passed,  just 
as  they  would  by  a  grant  from  an  individual  fee-simple  owner.12 
That  doctrine  has  remained  the  law  ever  since,*  except  as  affected  by 
the  express  reservation  in  the  act  of  1891.  A  patent  issued  under  the 

« 10  Stat.  308,  c.  103. 

» 12  Stat.  172,  c.  59. 

«12  Stat  664,  c.  56. 

»  26  Stat.  854,  c.  539  (U.  S.  Comp.  St.  1901,  p.  765). 

10  For  the   requisites  of  a   Spanish  grant  of  a  mine  to  make  the  grant 
binding  on  the  United  States,  see  Castillero,  v.  United  States,  2  Black  (U. 
S.)  17,  17  L.  Ed.  360. 

11  See  MOORE  v.   SMAW,  17  Cal.  199,  79  Am.  Dec.  123. 

12  Id.     See  Ah  Hee  v.  Crippen,  19  Cal.  491. 

*But  see  United  States  v.  San  Pedro  &  Cafion  del  Agua  Co.,  4  N.  M. 
(Johns.)  225,  17  Pac.  337,  discussed  infra. 


62  MINERAL   LANDS   AND  PUBLIC   LAND   GRANTS.  (Ch.  4: 

California  act  in  confirmation  of  a  Mexican  land  grant  is  a  dis- 
claimer by  the  United  States,  which  passes  to  the  grantee,  as  the 
recognized  rightful  owner  of  the  property,  all  the  interest  possessed 
by  the  United  States.18 

Under  the  New  Mexico,  Colorado,  and  Arizona  acts,  prior  to  the 
act  of  March  3,  1891,  patents  did  not  issue;  but  confirmation  of  such 
grants  as  were  investigated  under  that  act  took  place  by  confirmatory 
acts  of  Congress.1*  While  there  can  be  no  doubt  that  a  direct  con- 
firmation by  Congress  of  a  Mexican  grant  passes  to  the  claimant 
(as  effectively  as  a  patent  issued  under  the  California  board  of  land 
commissioners  act  did)  all  the  title  of  the  United  States  to  mineral 
lands  within  the  boundaries  of  the  grant,  the  Supreme  Court  of  New 
Mexico  went  out  of  its  way  to  declare  that  it  did  not.15  The  state- 
ment of  the  New  Mexican  court  was  an  obiter  dictum,  the  judg- 
ment of  the  court  being  affirmed  by  the  United  States  court  upon 
another  ground,16  and  is  clearly  erroneous.17 

The  Act  of  March  3,  1891. 

Under  the  act  of  March  3,  1891,  however,  there  is  a  different  ques- 
tion. By  the  third  subdivision  of  section  13  of  that  act18  it  was 
provided  that  "no  allowance  of  confirmation  of  any  claim  shall  confer 
any  right  or  title  to  any  gold,  silver,  or  quicksilver  mines  or  minerals 
of  the  same,  unless  the  grant  claimed  effected  the  donation  or  sale 
of  such  mines  or  minerals  to  the  grantee,  or  unless  such  grantee  has 
become  otherwise  entitled  thereto  in  law  or  in  equity;  but  all  such 
mines  and  minerals  shall  remain  the  property  of  the  United  States, 
with  the  right  of  working  the  same,  which  fact  shall  be  stated  in  all 
patents  issued  under  this  act.  But  no  such  mine  shall  be  worked 
on  any  property  confirmed  under  this  act  without  the  consent  of  the 
owner  of  such  property,  until  specially  authorized  thereto  by  an  act 
of  Congress  hereafter  passed."  Congress  undoubtedly  acted  within 
its  rights  in  making  this  proviso,  for,  of  course,  the  Mexican  land 
grant  claimant  was  legally  entitled  under  the  treaty  of  Guadalupe- 

13  Beard  v.  Federy,  3  Wall.  478;  Adam  v.  Norris,  103  U.  S.  591,  26  L. 
Ed.  583. 

i*  Where  a  Spanish  land  grant  was  confirmed  by  statute,  and  a  survey 
was  provided  for,  it  was  held  that  title  passed  on  the  confirmation  of  sur- 
vey in  1856,  and  did  not  wait  to  pass  until*  the  issuance  of  patent  in  1873. 
Levy  v.  Gause,  112  La.  789,  36  South.  684. 

1 5  United  States  v.  San  Pedro  &  Canon  del  Agua  Co.,  4  N.  M.  (Johns.) 
225,  17  Pac.  337. 

10  San  Pedro  &  Cafion  del  Agua  Co.  v.  United  States,  146  U.  S.  120,  13 
Sup.  Ct.  94,  36  L.  Ed.  911. 

17  Compare  Catron  v.  Laughlin,  11  N.  M.  604,  72  Pac.  26. 

i«  26  Stat.  854,  860,  c.  539  (U.  R.  Comp.  St  1901,  pp.  765,  772). 


§  15)  MINING   LOCATIONS  ON   MEXICAN   LAND   GRANTS.  63 

Hidalgo  to  no  more  than  the  Mexican  government's  grant  called 
for  and  that  did  not  call  for  the  minerals;  but,  on  the  other  hand, 
despite  the  doubt  expressed  by  Secretary  Hitchcock,19  Congress  seems 
to  have  done  here  what  it  has  done  nowhere  else,  except  in  the  railroad 
land  grants,  namely,  passed  the  title  to  the  land  and  reserved  un- 
known minerals.  The  only  explanation  seems  to  be  that  Congress 
was  suspicious  of  the  nature  of  many  of  the  so-called  Mexican  land 
grants,  and  wanted  to  take  away  that  large  part  of  the  inducement 
to  their  fraudulent  assertion  which  mineral  deposits  offered.  What 
the  ultimate  outcome  will  be  depends  upon  Congress,  and  until  Con- 
gress acts  no  valid  location  of  these  mineral  deposits  in  these  granted 
lands  can  be  made. 

Under  the  act  of  March  3,  1891,  it  has  been  held  that  the  title  to 
imperfect  grants  did  not  pass  out  of  the  United  States  on  the 
decree  of  the  Court  of  Private  Land  Claims,  but  only  on  the  confir- 
mation by  that  court  of  the  survey  defining  said  decree  as  provided 
by  the  statute.20  Before  leaving  the  various  kinds  of  Mexican  land 
grants,  we  must  notice  that  in  some  cases  Congress  authorized  the 
selection  by  claimants  of  lands  other  than  mineral  in  lieu  of  the  ones 
claimed.21  The  claimant  in  such  case  had  the  burden  of  establishing 
the  nonmineral  character  of  the  lands  selected,22  but  patent  was  con- 
clusive.23 

MINING  LOCATIONS  ON  MEXICAN  LAND  GRANTS. 

15.  Prior  to  the  act  of  1891  a  Mexican  land  grant  not  yet  adjudicated 
and  not  yet  barred  nnder  the  nonclaim  provisions  of  the  fed- 
eral statutes  was  sub  judice,  and  as  snch  was  not  public  land 
subject  to  appropriation  nnder  the  mining  or  other  land  laws. 
Bnt  since  the  act  of  1891  mining  locations  may  be  made  in  un- 
confirmed grants. 

And  now  a  word  as  to  mining  locations  made  on  Mexican  land 
grant  ground.  The  general  rule  was  that  a  grant  not  yet  adjudicated 
and  not  yet  barred  under  nonclaim  provisions  of  the  federal  statutes 
was  sub  judice,  and  as  such  was  not  public  land  subject  to  appropria- 
tion under  the  mining  or  other  land  laws.24  But  to  this  general 

i»  Quoted  in  1  Lindley  on  Mines  (2d  Ed.)  §  127. 

20  Territory  v.  Persons,  etc.,  12  N.  M.  169,  76  Pac.  316.    The  Court  of  Pri- 
vate Land  Claims  ceased  to  exist  June  30,  1904.    Act  March  3, 1903,  c.  1007  §  1, 
32  Stat.  1144  (U.  S.  Oomp.  St  Supp.  1907,  p.  232). 

21  See  Shaw  v.  Kellogg,  170  U.  S.  312,  18  Sup.  Ct.  632,  42  L.  Ed.  1050; 
Baca  Float  No.  3,  29  Land  Dec.  Dep.  Int.  44. 

22  Baca  Float  No.  3,  13  Land  Dec.  Dep.  Int.  624. 

23  Compare  Gale  v.  Best,  78  Cal.   235,  20  Pac.   550,   12  Am.   St.  Rep    44 

24  SOUTHERN  PAC.  R.  CO.  v.  UNITED  STATES,  200  U.  S.  354,  26  Sup! 
Ct  298,  50  L.  Ed.  512 ;   Newhall  v.  Sanger,  92  U.  S.  761,  23  L.  Ed.  769.     See 


64          MINERAL  LANDS  AND  PUBLIC  LAND  GRANTS.       (Ch.  4 

rule  the  act  of  March  3,  1891,  has  made  a  clear  exception,  and  now 
in  the  states  and  territories  affected  by  that  act  mining  locations  can 
be  made  on  unconfirmed  grants,  to  abide  the  final  determination  of 
the  validity  of  the  grant.  If  it  turns  out  that  the  lands  are  not  within 
the  grant,  the  validity  of  the  mining  location  is  unaffected  by  the 
fact  that  it  was  claimed  to  be  within  the  grant.28  If  it  was  within  the 
grant,  it  was  ended  by  decree  and  patent  of  the  grant  before  the  act  of 
1891  ;f  but  that  is  apparently  not  true  under  the  act  of  1891.*  Even 
prior  to  the  act  of  1891  it  was  true,  of  course,  that  where  a  grant  was 
finally  rejected  the  land,  without  further  action  by  the  land  department, 
became  subject  to  mineral  location  if  really  mineral.26  The  same  was, 
of  course,  true  where  the  claimant's  right  was  barred  under  the  statu- 
tory provision  of  non-claim.  And  where  float  grants  were  defined  by 
confirmation  the  excluded  area  became  open  and  unappropriated  land 
of  the  United  States,  while  Congress  by  direct  legislative  grant  might 
dispose  of  land  within  the  region  hovered  over  by  a  float  so  long  as 
enough  land  within  that  region  was  left  to  provide  the  acreage  called 
for  by  the  float.27  In  a  few  adjudicated  or  confirmed  grants,  as  in  the 
case  of  the  Maxwell  land  grant,  the  owners  have  inaugurated  their 
own  system  for  the  location  of  mining  claims. 


STATE  SCHOOL  LAND  GRANTS. 

16.  The  United  States  has  granted  to  the  states,  as  an  aid  to  schools, 
sections  16  and  36  in  every  township  as  well  as  other  lands, 
and  where,  for  any  reason,  the  specific  sections  cannot  pass, 
lieu  or  indemnity  lands  are  given.  Under  these  grants  lands 
known  to  be  mineral  at  the  time  of  the  grant,  and  not  within 
the  proviso  of  the  building  stone  act,  do  not  pass  to  the  states. 

The  various  states  of  the  mining  region  have  been  given  by  the 
United  States  sections  16  and  36  in  every  township  as  an  aid  in 
the  maintenance  of  the  public  schools.  Some  states  have  been  given 

Doolan  v.  Carr,  125  U.  S.  618,  8  Sup.  Ct.  1228,  31  TJ.  Ed.  844;  Cameron  r. 
United  States,  148  U.  S.  301,  13  Sup.  Ct.  595,  37  L.  Ed.  459. 

25LOCKHART  v.  JOHNSON,  181  U.  S.  516,  21  Sup.  Ct.  665,  45  L.  Ed. 
979,  affirming  Lockhart  v.  Wills,  9  N.  M.  344,  54  Pac.  336. 

t  Manning  v.  San  Jacinto  Tin  Co.  (C.  C.)  9  Fed.  726,  7  Sawy.  418. 

*Ix>ckhart  v.  Wills,  9  N.  M.  344,  54  Pac.  336,  338. 

26  Katherine  Davis,  30  Land  Dec.  Dep.  Int.  220. 

27  United  States  v.  McLaughlin,  127  U.  S.  428,  8  Sup.  Ct.  1177,  32  L.  Ed. 
213;    Carr  v.  Quigley,  149  U.  S.  652,  13  Sup.  Ct.  961,  37  L.  Ed.  885.     See 
Wisconsin  Cent  R.  Co.  v.  Forsythe.  159  U.  S.  48,  15  Sup.  Ct  1020,  40  L. 
Ed.  71. 


§  16)  STATE  SCHOOL  LAND  GRANTS.  65 

additional  sections.  For  instance,  Utah  received  sections  2,  16,  32, 
and  36  in  each  township.28  Nevada  was  given  2,000,000  acres  in 
lieu  of  sections  16  and  32.29  The  generosity  of  the  general  govern- 
ment has  grown  with  the  years,  as  originally  only  one  section  to  a 
township  was  given  for  educational  purposes.30 

Where  for  any  reason  some  of  sections  16  and  36  and  the  other  sec- 
tions granted  could  not  be  taken  by  the  states,  because  of  prior 
agricultural  entries,  the  mineral  character  of  the  lands,  etc.,  Con- 
gress by  statute  provided  that  the  state  affected  might  select  ,an 
equivalent  amount  of  other  lands  within  its  borders,  known  as  "lieu" 
or  "indemnity"  lands.31  This  right  to  lieu  or  indemnity  lands  is  held 
by  the  land  department  to  exist  in  the  states  and  their  grantees  un- 
der the  acts  of  Congress  affecting  forest  reserves,82  though  there  is 
some  question  of  the  correctness  of  the  land  department's  decision.33 
Then  other  lands  have  been  granted  to  the  states,  to  be  selected  by 
them,  for  agricultural  college  purposes,  for  state  university  purposes, 
and  for  internal  improvement  purposes.  For  instance,  Utah,  in  ad- 
dition to  the  four  sections  in  each  township  awarded  to  it,  received 
110,000  acres,  including  all  saline  lands,  for  the  use  of  the  university, 
200,000  acres  for  the  use  of  the  agricultural  college,  and  various 
lands  for  other  purposes.34  "Nothing  is  clearer,"  says  Mr.  Justice 
Brewer,  "than  that  the  policy  of  the  government  has  been  a  generous 
one  in  respect  to  grants  for  school  purposes."  85 

With  reference  to  these  grants  two  things  are  important  for  us, 
namely,  first,  that  by  express  reservation  in  some  cases,  and  by 
implied  reservation  in  all,  mineral  lands  other  than  building  stone 
lands  are  excluded  from  these  grants ;  and,  second,  that  as  this  reser- 
vation keeps  from  the  state  only  those  lands  which,  at  the  time  the 
title  is  to  pass  from  the  United  States  to  the  state,  are  known  to  be 
mineral,  the  time  of  passing  of  title  is  to  be  ascertained. 

ss  Act  July  16,  1894,  c.  138,  28  Stat  107,  109.  On  the  nature  of  the  Utah 
grant,  see  Brigham  City  v.  Rich  (Utah)  97  Pac.  220. 

2» Act  June  16,  1880,  c.  245,  21  Stat.  288.  Oklahoma  was  given  $5,000,000 
In  lieu  of  these  school  sections. 

«o  Donaldson's  Public  Domain,  224. 

si  Rev.  St.  U.  S.  §  2275;  Act  Feb.  28,  1891,  c.  384,  26  Stat.  796  (U.  S. 
Comp.  St.  1901,  p.  1381). 

32  Instructions,  28  Land  Dec.  Dep.  Int.  328.  Cf.  State  of  California,  28 
Land  Dec.  Dep.  Int.  57;  Territory  of  New  Mexico,  29  Land  Dec.  Dep. 
Int.  399. 

83  Hibberd  v.  Slack  (C.  O.)  84  Fed.  571,  581,  582. 

»*  Act  June  16,  1894,  c.  138,  28  Stat  107,  109,  110. 

85Johanson  v.  Washington,  190  U.  S.  179,  183,  23  Sup.  Ct.  825,  47  L. 
Ed.  1008. 

COST.MIN.L.— 5 


66          MINERAL  LANDS  AND  PUBLIC  LAND  GRANTS.       (Ch.  4 

Mineral  Lands  in  State  Land  Grants. 

With  reference  to  mineral  lands  being  excluded  from  these  state 
grants  it  is  only  necessary  to  say  that  while,  in  the  past,  there  have 
been  differences  of  opinion  with  reference  to  those  grants  not  con- 
taining express  reservations,  those  differences  no  longer  exist.  While 
California  once  held  that  mineral  lands  passed  to  the  state  by  the  grant, 
since  they  were  not  expressly  reserved,36  that  state  no  longer  ad- 
heres to  that  doctrine.87  Indeed,  the  provision  of  section  2318  of  the 
United  States  Revised  Statutes  (U.  S.  Comp.  St.  1901,  p.  1423),  that 
"in  all  cases  lands  valuable  for  minerals  shall  be  reserved  from  sale 
except  as  otherwise  directed  by  law"  (which  was  section  5  of  the  first 
federal  general  mining  law  act),  would  to-day  be  impliedly  a  part  of 
every  land  grant  not  expressly  purporting  to  pass  mineral  lands. 
Even  as  regards  the  California  and  other  state  land  grants  antedat- 
ing its  existence,  the  section,  since  it  is  merely  declaratory  of  that 
general  mining  law  policy  to  which,  as  we  have  seen,  the  federal 
government  prior  to  the  act  of  1866  was  tacitly  committed,38  must  be 
held  to  state  what  always  has  been  an  implied  exception  in  mining 
law  states  to  state  land  grants.  While  it  is  true  that  in  Cooper  v. 
Roberts  39  the  United  States  Supreme  Court  held  that  mineral  lands 
passed  by  a  state  grant,  that  decision  was  rendered  prior  to  the  time 
when  American  mining  law  as  such  was  born,  and  since  American 
mining  law,  with  its  permeating  influence  on  the  whole  land  system  of 
the  United  States,  has  come  into  existence,  the  United  States  Supreme 
Court  has  recognized  such  mining  law  by  holding  that  in  state  land 
grants  Congress  has  no  intention  of  infringing  its  uniform  policy  of 
dealing  with  mineral  lands  by  themselves,  and  that  mineral  lands 
known  to  be  such  do  not  pass  under  state  land  grants.40  Cooper  v. 

36  Higgins  v.  Houghton,  25  Cal.  252. 

37  HERMOCILLA  v.  HUBBELL,  89  Cal.  5,  26  Pac.  611.     California  has  a 
statute  throwing  mineral  lands  in  sections   16  and  36  open  to  exploration 
and  purchase  under  the  rules  and  regulations  of  the  United  States  for  the 
sale  of  mineral  lands.     Gen.  Laws  Cal.  1903  (Deering's  Ed.)  p.  623,  art  2229. 

ss  Sparrow  v.  Strong,  3  Wall.  (U.  S.)  97,  104,  18  L.  Ed.  49. 

3»  18  How.  173,  15  L.  Ed.  338. 

40IVANHOE  MINING  CO.  v.  KEYSTONE  CONSOLIDATED  MINING 
CO.,  102  U.  S.  167,  26  L.  Ed.  126;  State  of  Utah,  32  Land  Dec.  Dep.  Int. 
117.  This  is  true  as  well  of  the  2,000,000-acre  grant  to  Nevada.  Garrard 
v.  Silver  Peak  Mines,  94  Fed.  98S,  36  C.  C.  A.  603;  Keystone  Lode  &  Mill 
Site  v.  State  of  Nevada,  15  Land  Dec.  Dep.  Int.  259.  See  Heydenfeldt  v. 
Daney  Gold  &  Silver  Mining  Co.,  93  U.  S.  634,  23  L.  Ed.  995.  But  to  be 
excluded,  the  lands  must  be  valuable  for  mining  purposes.  Merrill  v.  Dixon, 
15  Nev.  401.  The  surveyor  general's  return  that  they  are  mineral  is  not 
conclusive.  State  of  Utah,  32  Land  Dec.  Dep.  Int.  117,  and  neither  is  a 
mineral  location  antedating  the  grant.  Mahogany  No.  2  Lode  Claim,  33 
Land  Dec.  Dep.  Int.  37. 


16)  STATE   SCHOOL   LAND   GRANTS. 


Roberts  was  a  proper  decision  under  the  old  regirru 
ing  Co.  v.  Keystone  Consolidated  Mining  Co.  is 

the  new.    The  land  department  has,  of  course,  folloN^gd  t|^g.^^f  deci- 
sion.41 

But  it  should  be  noticed  that  building  stone  land,  by  virtue  of  a 
proviso  in  the  building  stone  act,  has  been  held  by  the  land  depart- 
ment to  be  mineral  land  which  a  state  can  claim  under  a  state  land 
grant  of  sections  16  and  32,  and  which,  if  not  previously  located,  it 
may  claim  under  other  donations.  The  act  reads:  "That  any  person 
authorized  to  enter  lands  under  the  mining  laws  of  the  United  States 
may  enter  lands  that  are  chiefly  valuable  for  building  stone,  under  the 
provisions  of  the  law  in  relation  to  placer  mineral  claims:  provided, 
that  lands  reserved  to  any  state  shall  not  be  subject  to  entry  under  this 
act."  42  It  seems  clear  that  sections  16  and  32  are  the  "lands  reserved" 
to  the  states  designated  in  the  proviso,  and  that  the  land  department, 
therefore,  properly  treats  the  act  as  an  express  authorization  to  turn 
over  to  the  states  all  building  stone  land  within  those  sections 
16  and  32  43  not  located  under  the  mining  laws  prior  to  the  building 
stone  act.44  It  would  also  seem  that  the  land  department  is  perfectly 
right  in  treating  the  proviso  as  an  authorization  for  a  state  to  take 
building  stone  land  sections  under  grants  of  lands  to  be  selected  by 
the  state,45  provided,  of  course,  all  valid  previous  building  stone  lo- 
cations are  recognized  and  protected.  This  is  doubtless  as  true  of  all 
lieu  or  indemnity  lands  as  of  floating  agricultural  college,  state  uni- 
versity, or  internal  improvement  grants. 

But,  of  course,  when  it  is  said  that  the  state  does  not  get  mineral 
lands  other  than  building  stone  lands,  that  merely  means  that  it  does 
not  get  lands  which,  prior  to  the  vesting  of  title  in  the  state,  are  known 
to  be  mineral.46  As  a  matter  of  fact,  Nevada,  first  in  a  limited  way,47 
and  Colorado,  now  by  a  general  statute,48  have  provided  methods  for 
the  location  of  mining  claims  on  state  lands.  Much  valuable  mineral 
land,  not  known  to  be  such  at  the  time  of  the  federal  land  grants, 
has  passed  to  the  mining  states,  and  it  is  important,  therefore,  to 
ascertain  just  when  the  title  to  state  grants  does  pass  to  the  state. 

41  State  of  Utah  v.  Allen,  27  Land   Dec.  Dep.  Int.  53. 

*  2 Act  Aug.  4,  1892,  c.  375,  27  Stat.  348  (U.  S.  Comp.  St.  1901,  p.  1434). 

43  South  Dakota  v.  Vermont  Stone  Co.,  16  Land  Dec.  Dep.  Int.  263. 

44  Paris  Gibson,  21  Land  Dec.  Dep.  Int.  327. 
46  State  of  Utah,  29  Land  Dec.  Dep.  Int.  69. 

46  See  Mullan  v.  United  States,  118  U.  S.  271,  6  Sup.  Ct.  1041,  30  I*  Ed. 
170. 

47  See  Stanley  v.  Mineral  Union,  26  Nev.  55,  63  Pac.  59. 

48  Laws  Colo.  1905,  p.  342,  c.  134,  §  54.    For  the  California  Statute,  see  note 
37,  supra. 


68  MINERAL  LANDS  AND  PUBLIC  LAND  GRANTS.  (Cll.  4 


WHEN  TITLE  PASSES  TO  THE  STATE. 

17.  When,  as  in  the  case  of  sections  16  and  36  in  each  township,  the 
state  land  grant  is  in  prsesenti,  title  passes  at  once  if  the  sec- 
tions are  surveyed,  or  immediately  npon  the  approval  of  the 
survey  if  at  the  time  of  the  grant  they  are  unsurveyed.  If  the 
sections  are  not  known  to  be  mineral  at  the  time  title  is  to 
.pass,  the  state's  title  is  perfect.  In  lieu  or  indemnity  selec- 
tions the  title  does  not  pass  until  the  selections  are  approved  by 
the  land  department  and  certified  to  or  listed  to  the  state,  and 
if -at  that  time  it  is  not  known  that  the  selected  land  is  mineral 
the  title  of  the  state  is  perfect.  In  the  case  of  the  grant  of 
sections  16  and  36,  knowledge  that  the  land  is  mineral  seems 
to  prevent  the  state  from  acquiring  title;  but  in  the  case  of 
lieu  selections  approved  by  the  land  department  title  passes 
to  the  state  despite  such  knowledge,  subject  to  the  right  of 
the  United  States  to  bring  a  suit  to  set  aside  the  selections  for 
fraud. 

The  passing  of  title  depends  upon  the  nature  of  the  grant.  When 
the  grant  is  in  praesenti,  as  is  true  of  sections  16  and  36,  there  is  no 
doubt  that  the  title  vests  in  the  state  at  once  if  the  land  is  surveyed 
and  the  sections  are  designated,  or  immediately  upon  the  survey  if  the 
land  is  unsurveyed.  Title  cannot  pass  until  survey,  of  course,  for  until 
then  the  court  cannot  say  what  land  comprises  sections  16  and  36. ** 
Title  does  not  pass  until  the  survey  is  approved.50  Sections  16  and  36 
are  not  certified  to  the  states  nor  patented  to  them.  They  pass  to 
the  states  under  the  acts  of  Congress.61 

If  now,  in  surveying  the  sections,  the  surveyor  returns  sections 
16  and  36,  or  some  of  them,  as  mineral,  it  is  held  by  the  land  de- 
partment that,  without  a  further  finding  as  to  the  mineral  character 
of  the  ground,  the  state  may,  under  the  act  of  February  28,  1891, 52 
make  a  lieu  or  indemnity  selection ; 53  and  this  would  seem  to  be 
sound.54  Any  lieu  or  indemnity  selection  would  prevent  the  state 
from  ever  contradicting  the  return ;  "  but,  if  the  state  is  unwilling 

*9  Heydenfeldt  v.  Daney,  Gold  &  Silver  Mining  Go.,  93  U  S.  634,  23  L. 
Ed.  995. 

soCLEMMONS  v.  GILLETTE,  33  Mont.  321,  83  Pac.  879,  114  Am.  St. 
Rep.  814;  Finney  v.  Berger,  50  Cal.  248;  Medley  v.  Robertson,  55  Cal.  396. 
See  State  of  California  v.  Wright,  24  Land  Dec.  Dep.  Int  54. 

si  See  Instructions,  31  Land  Dec.  Dep.  Int.  212. 

•2  26  Stat  796,  c.  384  (U.  S.  Comp.  St  1901,  p.  1381). 

«  State  of  California,  23  Land  Dec.  Dep.  Int.  423.  But  see  Instructions, 
31  Land  Dec.  Dep.  Int  212. 

«*  Johnston  v.  Morris,  72  Fed.  890,  19  C.  C.  A.  229. 

«  State  of  California,  28  Land  Dec.  Dep.  Int.  57. 


§17)  WHEN   TITLE   PASSES   TO   THE   STATE.  69 

to  take  lieu  or  indemnity  land,  it  can  contest  the  return,88  which  is 
called  "proving  the  mineral  off."  If,  on  the  other  hand,  the  surveyor 
returns  the  sections  as  agricultural,  the  state  can  get  lieu  lands  only 
by  affirmatively  establishing  that  the  sections  16  and  36  involved  are 
mineral.58  The  state  is,  of  course,  a  necessary  party  to  any  proceed- 
ing to  get  a  mineral  patent  for  land  embraced  in  sections  16  and  36, 
however  they  are  returned  by  the  surveyor,59  unless,  of  course,  lands 
in  lieu  of  the  section  affected  have  been  chosen  by  the  state  and  the 
lieu  selections  have  been  approved  and  certified  by  the  proper  land 
officers. 

In  the  case  of  lieu  lands,  title  can  pass  only  when  the  lands  are 
selected  by  the  proper  state  authorities,  with  the  approval  of  the  land 
department,  from  lands  not  known  at  the  time  to  be  mineral.60  The 
state  may,  of  course,  contest  the  surveyor  general's  return  as  to  these 
lieu  sections.61  It  is  only  when  the  lieu  selections  have  been  approved 
by  the  proper  land  office  authorities,  an  act  which  withdraws  the  lands 
from  private  entry,62  and  the  sections  certified  to  or  listed  to  the  select- 
ing state,  under  section  2449,  Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901, 
p.  1516)— the  certificate  or  listing  being  an  act  which  is  the  equivalent 

»«  Richter  v.  State  of  Utah,  27  Land  Dec.  Dep.  Int.  95. 

B  s  Bond  v.  State  of  California,  31  Land  Dec.  Dep.  Int  34;  Instructions, 
Id.  212. 

"(16)  The  states  will  not  be  permitted  to  make  selections  in  lieu  of  lands 
within  a  school  section  alleged  to  be  mineral,  in  the  absence  of  proof  that 
such  lands  are  known  to  be  chiefly  valuable  for  mineral.  Such  preliminary 
proof  must  show  the  kind  of  mineral  discovered  and  the  extent  thereof." 

"(18)  A  determination  by  the  General  Land  Office  or  the  department  that 
a '  portion  of  the  smallest  legal  subdivision  in  a  school  section  is  mineral 
land  will  place  that  entire  subdivision  in  the  class  of  lands  that  may  be  used 
as  a  basis  for  indemnity  selection,  and  where  mineral  entry  was  made  of  any 
portion  of  the  smallest  legal  subdivision  of  a  school  section,  that  fact  will 
be  taken  as  determining  the  right  of  the  state  to  indemnity  for  the  entire 
legal  subdivision,  upon  proper  showing  that  the  state  has  not  made  any  dis- 
position of  the  land  not  embraced  in  such  mineral  entry." 

General  Land  Office  Rules  Governing  State  Land  Grants,  Issued  April  25, 
1907,  rules  16  and  18. 

5»  Fleetwood  Lode,  12  Land  Dec.  Dep.  Int.  604.  See  Mahoganey  No.  2 
Lode  Claim,  33  Land  Dec.  Dep.  Int.  37. 

eo  See  Wisconsin  Cent.  R.  Co.  v.  Price  County,  133  U.  S.  496,  10  Sup.  Ct.  341, 
33  L.  Ed.  687.  Compare  Kern  Oil  Co.  v.  Clarke,  31  Land  Dec.  Dep.  Int 
288.  That  the  title  may  relate  back  to  the  date  of  the  grant  was  held  in  Brig- 
ham  City  v.  Rich  (Utah)  97  Pac.  220. 

ei  Richter  v.  State  of  Utah,  27  Land  Dec.  Dep.  Int.  96;  State  of  Cali- 
fornia, 22  Land  Dec.  Dep.  Int.  294,  402. 

62  JOHANSON  V.  WASHINGTON,  190  U.  S.  179,  23  Sup.  Ct  825,  47  L. 
Ed.  1008. 


70  MINERAL   LANDS   AND   PUBLIC   LAND   GRANTS.  (Ch.   4r 

of  a  patent  63 — that  the  state  has  a  legal  title  to  the  indemnity  sec- 
tions.64 What  has  been  said  with  reference  to  indemnity  lands,  of 
course,  applies  to  all  floating  state  grants.  Title  can  pass  only  when  the 
lands  are  selected  by  the  state,  the  selection  approved  by  the  land 
department,  and  the  lands  certified  or  listed  to  the  state.  It  appears, 
then,  that  in  the  case  of  sections  16  and  36  it  is  the  date  of  the  approval 
of  the  survey,  if  that  comes  after  the  granting  act,  or  the  date  of  the 
act  itsel'f,  if  that  comes  after  the  approval  of  the  survey,  that  is  the  time 
when  the  lands  must  be  known  to  be  mineral  to  defeat  the  grant,  and 
that  in  the  case  of  lieu  selections — i.  e.,  indemnity  lands — it  is  the  date 
of  the  final  approval  of  the  selection  and  certification  thereof  to  the 
state  that  is  the  time  when  knowledge  of  the  land's  mineral  character 
must  exist  to  defeat  the  grant. 

But  there  is  a  marked  difference  between  sections  16  and  36  and 
the  lieu  selections.  The  latter  are  in  the  situation  of  patented  lands. 
There  has  been  an  investigation  of  their  character,  a  finding  in  regard 
to  it  by  the  land  department,  and  a  passing  of  the  title  by  that  depart- 
ment as  to  lieu  selections.  In  the  case  of  lieu  selections,  therefore, 
title  passes  from  the  United  States,  to  be  regained  only  when  it  could 
be  regained  from  a  private  patentee,  namely,  in  the  case  of  fraud.  But 
with  reference  to  sections  16  and  36  there  is  no  adjudication  by  the 
land  department,  and  the  voluntary  certificates  sometimes  given  by 
the  registers  of  local  land  offices  are  unauthorized,66  so  the  result  seems 
to  be  that  lands  in  these  sections,  which  at  the  time  title  ordinarily 
would  have  passed  are  known  to  be  mineral,  never  pass  to  the  state.66 
It  follows,  despite  a  California  decision  to  the  contrary,67  that  where 
the  state  has  not  derived  title  it  cannot  pass  title  to  its  patentee.68 

«3  McCreery  v.  Haskell,  119  U.  S.  327,  7  Sup.  Ct.  176,  30  L.  Ed.  408;  Mow- 
er v.  Fletcher,  116  U.  S.  380,  6  Sup.  Ct.  409,  29  L.  Ed.  593;  Frasher  v. 
O'Connor,  115  U.  S.  102,  5  Sup.  Ct.  1141,  29  L.  Ed.  311. 

e*  Compare  Wisconsin  Cent.  R.  Co.  v.  Price  County,  133  U.  S.  496,  10  Sup.  Ct. 
341,  33  L.  Ed.  687 ;  Allen  v.  Pedro,  136  Cal.  1,  68  Pac.  99.  For  a  special  situa- 
tion, see  State  v.  Tanner,  73  Neb.  104,  102  N.  W.  235.  Compare  case  about 
swamp  lands,  United  States  v.  Chicago,  M.  &  St.  P.  R.  Co.  (C.  C.)  148 
Fed.  884. 

65  Instructions,  31  Land  Dec.  Dep.  Int.  212. 

66IVANHOE  MINING  CO.  v.  KEYSTONE  CONSOL.  MINING  CO.,  102 
U.  S.  167,  26  L.  Ed.  126. 

67  Saunders  v.  La  Purisima  Gold  Min.  Co.,  125  Cal.  159,  57  Pac.  656. 

es  Hermocilla  v.  Hubbell,  89  Cal.  8,  26  Pac.  611.  Indemnity  selections  in 
li«u  of  school  lands  will  not  be  allowed  where  the  offered  base  lands  are  cov- 
ered by  outstanding  patents  issued  by  the  state,  nothwithstanding  the  lands 
were  known  to  be  mineral  at  the  date  of  survey,  and  therefore  were  exempted 
from  the  grant.  The  state  having  clouded  the  title  to  the  land,  it  must  re- 
move the  obstructions  of  its  own  creation  before  the  land  department  will 
make  an  exchange.  State  of  California,  36  Land  Dec.  Dep.  Int.  432. 


§§  18-19)  RAILROAD   LAND   GRANTS.  71 

As  will  readily  be  seen,  this  conclusion  is  quite  important  with  refer- 
ence to  mining  locations  hereafter  to  be  made  on  state  lands  under  the 
Colorado  statute.69 

When  title  passes  to  the  state,  it  passes  once  for  all.  A  grant  of 
lands  to  a  state  for  school  purposes  is  an  absolute  grant,  neither  a  con- 
dition nor  a  possibility  of  reverter  remaining  in  the  United  States, 
and  where  the  statute  of  limitations  runs  against  a  state  the  title  to 
such  -lands  may  be  acquired  from  the  state  by  adverse  possession.^ 


RAILROAD  LAND  GRANTS. 

18.  Railroad  land  grants  convey  the  fee   (1)   to  right  of  way   strips; 

(2)  to  designated  odd-numbered  sections,  called  the  "in  place" 
sections;  and  (3)  to  lieu  or  indemnity  lands.  At  the  time  of 
filing  the  approved  map  of  definite  location,  or,  if  none  is 
filed,  then  on  the  actual  construction  of  the  road,  the  right  of 
•way  strip  and  the  designated  surveyed  sections,  so  far  as  not 
previously  disposed  of,  pass  to  the  railroad.  The  grant  of  the 
right  of  way  strip  and  of  the  odd-numbered  sections  is  in 
prsesenti;  but  the  title  to  lieu  or  indemnity  land  does  not  pass 
until  the  lands  have  been  selected  by  the  railroad  and  certified 
by  the  land  department. 

19.  All  mineral  lands  are  reserved  to  the  United  States  by  the  rail- 

road land  grant  acts.  For  reasons  of  public  policy,  however, 
unlocated  mineral  lands  in  the  right  of  way  strip  at  the  time 
the  title  to  the  strip  passes  to  the  road  become  railroad  lands 
despite  that  reservation.  Mineral  lands  in  the  "in  place"  sec- 
tions and  in  the  "lien"  or  "indemnity"  sections  do  not  pass  to 
. .  the  railroad;  but  there  appears  to  be  no  method  of  locating 

minerals  exceptecl  in  patents  issued  to  the  railroads. 

Congress  has  made  from  time  to  time,  extensive  railroad  land  grants. 
Those  grants  have  consisted  of:  (1)  A  right  of  way  strip  of  land  for 
main  tracks  and  necessary  additional  land  for  side  tracks,  depots,70 

69  Laws  Colo.  1905,  p.  342,  c.  134,  §  34.     Where  a  patent  Is  issued  by  a 
state  to  mineral   land  reserved  by  the  United   States  from  a  grant  to  the 
state,   the   patent  is  subject  to   collateral   attack.    GARRARD  v.    SILVER 
PEAK  MINES,  94  Fed.  983,  36  C.  C.  A.  603. 

^SCHNEIDER  v.  HUTCHINSON,  35  Or.  253,  57  Pac.  324,  76  Am.  St. 
Rep.  474. 

70  The  right  of  way  strip  becomes  fixed  by  the  approval  of  the  profile  map 
of  the  road  or  the  actual  construction  of  the  road.     Minneapolis,  St.  P.  &  S. 
S.  M.  R,  Co.  v.  Doughty,  208  U.  S.  251,  28  Sup.  Ct.  291,  52  L.  Ed.  474;  JAMES- 
TOWN N.  R.  CO.  v.  JONES,  177  U.  S.  125,  20  Sup.  Ct.  568,  44  L.  Ed.  698; 
Oregon  Short  Line  R.  Co.  v.  Stalker  (Idaho)  94  Pac.  56;  Spokane  &  B.  C.  Ry. 
Co.  v.  Washington  &  G.  N.  R.  Co.  (Wash.)  95  Pac.  64. 


72  MINERAL  LANDS  AND  PUBLIC  LAND   GRANTS.  (Ch.  4 

etc.;  (2)  certain  designated  alternate  odd-numbered  sections  of  land 
within  certain  designated  limits  on  each  side  of  the  line  of  the  road; 
and  (3)  lieu  or  indemnity  lands  for  those  of  the  above  odd-numbered 
sections  reserved  as  mineral  or  previously  disposed  of.  Beginning  with 
the  first  Pacific  Railroad  grant  of  July  1,  1862,**  made  by  the 
United  States  government  directly  to  the  corporation  receiving  the 
grant,  the  public  mineral  domain  became  affected  by  such  grants.ff 
From  the  very  start  the  United  States  reserved  minerals  from  the 
railroad  grants.  In  the  act  of  July  1,  1862,  appeared  the  proviso  "that 
all  mineral  lands  shall  be  excepted  from  the  operation  of  this  act."  71 
Subsequent  acts  contained  similar  provisions,12  and  they  were  followed 
up  by  a  joint  resolution,  approved  January  30,  1865, 7S  to  the  effect 
that  in  both  state  and  railroad  land  grants  all  mineral  lands  were  reserv- 
ed to  the  United  States,  "unless  otherwise  specially  provided  in  the  act 
making  the  grant."  The  mining  act  of  1866  was  still  in  the  future, 
but  undoubtedly  Congress  had  in  mind  in  the  reservation  future  legis- 
lation on  mining,  as  well  as  the  existing  conditions  in  the  mining  re- 
gions already  tacitly  sanctioned  by  the  United  States. 
Grants  of  Right  of  Way  Strips. 

We  must  notice,  however,  that  for  reasons  of  public  policy  the 
mineral  lands  in  the  right  of  way  strips  not  actually  located  at  the 
time  when  the  right  of  way  became  fixed  by  the  filing  with  the  Secre- 
tary of  the  Interior  and  acceptance  by  him  of  the  railroad's  map  of 
definite  location,  or  by  the  actual  construction  of  the  road,  became  rail- 
road lands  despite  the  reservations  above  noted.  As  the  Supreme  Court 
of  Montana  points  out :  "The  mineral  lands  excluded  from  the  opera- 
tion of  this  act  are  evidently  not  those  covered  by  the  right  of  way,  as 
nothing  could  possibly  be  given  in  lieu  of  any  lands  which  might  be 
needed  for  such  a  purpose ;  and  it  would  be  destructive  of  the  rights  of 
the  railroad  company,  if  mining  claims  could  at  any  time  be  located 
and  worked  upon  the  track  and  land  covered  by  the  right  of  way. 
See  Doran  v.  Central  Pac.  R.  Co.,  24  Cal.  246.  The  joint  resolution  of 
Congress  of  January  30,  1865,  declaring  that  no  act  shall  be  so  con- 
strued as  to  embrace  mineral  lands,  which  in  all  cases  shall  be,  and  are 
-hereby,  reserved  exclusively  to  the  United  States,  cannot  be  considered 

**12  Stat  489,  c.  120. 

ft  By  the  grants  timber  was  allowed  to  be  taken  for  the  construction  of 
the  railroads  from  adjacent  public  lands.  Lands  20  miles  away  were  held 
not  to  be  adjacent  in  United  States  v.  St  Anthony  R.  Co.,  192  U.  S.  524,  24 
Sup.  Ct.  333,  48  L.  Ed.  548.  See,  also,  United  States  v.  Bachelder,  9  N.  M. 
15,  48  Pac.  310. 

TiAct  July  1,  1862,  c.  120,  §  3,.  12  Stat  492. 

T2  See  Act  July  2,  1864,  c.  217,  §  3,  13  Stat  36T. 
No.  10,  13  Stat.  567. 


§§    18-19)  RAILROAD   LAND   GRANTS.  73 

as  a  reservation  of  mineral  lands  from  the  operation  of  grants  of  the 
right  of  way,  such  as  the  one  in  question.  A  reservation  of  that  char- 
acter would  annihilate  the  franchise  and  annul  the  operation  of  the 
entire  act  of  Congress  granting  the  charter.  The  operations  of  mining 
and  the  business  of  railroads  cannot  be  conducted  at  the  same  time 
upon  the  same  ground,  and  a  reservation  of  such  a  character  would  be- 
get a  conflict  of  rights  and  a  confusion  of  interests,  not  in  contempla- 
tion of  intelligent  legislative  action."  74 

While  this  is  true,  a  mining  location  made  across  the  right  of 
way  strip  prior  to  the  approval  of  the  map  of  definite  location  by  the 
Secretary, of  the  Interior  will  be  given  priority,75  except  in  a  case 
where  the  right  of  way  has  been  definitely  located  by  the  construction 
of  the  road  prior  to  the  location  of  the  mining  claim.76  A  railroad 
right  of  way  grant  is  also  subject  to  prior  homestead  claims.77  Where 
a  mining  claim  or  homestead  across  the  proposed  right  of  way  is 
valid,  the  railroad  must  resort  to  condemnation  proceedings  to  go 
over  it,  if  an  agreement  between  the  company  and  the  owner  cannot 
be  reached.78 

With  reference  to  the  grants  of  rights  of  way,  it  must  be  noted 
that  the  term  "right  of  way"  does  not  imply  that  the  railroad  company 
gets  only  an  easement.  In  a  few  cases  it  gets  only  that;79  but  as  a 

74  WILKINSON  v.  NORTHERN  PAG.   R.   CO.,  5   Mont.   538,   547,  548,   6 
Pac.  349.     See  Doran  v.  Central  Pac.  R.  Co.,  24  Oal.  246;    Pennsylvania  Min. 
&  Imp.  Co.  v.  Everett  &  M.  C.  R.  Co.,  29  Wash.  102,  69  Pac.  628.     Compare 
Sousa  v.  Pereira,  132  Cal.  97,  64  Pac.  90. 

75  SOUTHERN  CALIFORNIA  RY.  CO.  v.  O'DONNELL,  3  Cal.  App.  382,  85 
Pac.  932 ;  Alaska  Pac.  Ry.  &  Terminal  Co.  v.  Copper  River  &  N.  W.  Ry.  Co. 
(C.  C:  A.)  160  Fed.  862. 

7«  PENNSYLVANIA  MIN.  &  IMP.  CO.  v.  EVERETT  &  M.  C.  R.  CO., 
29  Wash.  102,  69  Pac.  628. 

77  Oregon  Short  Line  R.  Co.  v.  Fisher,  26  Utah,  179,  72  Pac.  931;    Dough- 
ty v.  Minneapolis,  St.  P.  &  S.  S.  M.  R.  Co.,  15  N.  D.  290,  107  N.  W.  971; 
Slaght   v.   Northern   Pac.   R.   Co.,   39  Wash.    576,   81   Pac.    1062;     Northern 
Pac.  Ry.  Co.  v.  McCormick  (C.  C.)  89  Fed.  659;    Union  Pac.  R.  Co.  v.  Har- 
ris (Kan.)  91  Pac.  68. 

78  See  Enid  &  A.  Ry.  Co.  v.  Kephart  (Okl.)  91  Pac.  HH9;    Slaght  v.  North- 
ern Pac.   R.   Op.,  39  Wash.  576,  81  Pac.  1062;    Denver  &  R.  G.   R.  Co.  v. 
Wilson,  28  Colo.  6,  62  Pac.  843.     Where  a  prior  mining  claimant  deeded  a 
right  of  way  to  the  railway  company,  and  afterward  the  claimant  abandoned 
the  claim,  and  it  was  relocated  by  a  third  person,  it  was  held  that  the  re- 
location was  subject  to  the  easement  of  the  railway  company.     Bonner  v. 
Rio  Grande  S.  R.  Co.,  31  Colo.  446,  72  Pac.  1065.     If  after  the  definite  lo- 
cation of  the  road  the  route  is  changed  to  run  over  homestead  or  other 
privately  owned  lands,  the  new  right  of  way  must  be  procured  by  purchase 
or  by  condemnation.     Northern  Pac.  R.  Co.  v.  Murray,  87  Fed.  648,  31  CL 
C.  A.  183;    Steele  v.  Tanana  Mines  Ry.  Co.,  2  Alaska,  451. 

7»  See  Grand  Canyon  Ry   Co.  v.  Cameron,  35  Land  Dec.  Dep.  Int.  495,  497. 


74  MINERAL  LANDS  AND   PUBLIC   LAND   GRANTS.  (Ch.  4, 

rule  the  grant  of  the  right  of  way,  so  called  in  the  acts,  is  practically 
the  grant  of  the  fee  to  the  strip,80  upon  its  being  defined  by  the  filing 
of  the  approved  map  of  definite  location  or  by  the  actual  construction 
of  the  road.81  This  fee  is  not  granted  for  all  purposes,  however,  but 
only  so  long  as  the  land  is  used  for  the  railroad  right  of  way,  and 
in  consequence  a  title  to  the  right  of  way  cannot  be  acquired  by  ad- 
verse possession.82  The  importance  of  this  doctrine  is  apparent  in 
view  of  the  holding  that  a  grant  of  100  feet  wide  right  of  way  must 
be  protected  from  adverse  possession  to  the  full  extent  of  the  100  feet.83. 
Since  the  company  gets  the  fee  in  such  case,  the  right  of  way  forth- 
with ceases  to  be  public  domain,  and  no  mineral  location  is  thereafter 
possible  upon  it.84 


so  Missouri,  K.  &  T.  Ry.  Co.  v.  Roberts,  152  U.  S.  114,  14  Sup.  Ct.  496,  38 
L.  Ed.  377;  Melder  v.  White,  28  Land  Dec.  Dep.  Int.  412;  Oregon  Short 
Line  R.  Co.  v.  Stalker  (Idaho)  94  Pa*?.  56. 

si  St.  Joseph  &  D.  C.  R.  Co.  v.  Baldwin,  103  U.  S.  426,  26  L.  Ed.  578 ; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Watson,  74  Kan.  494,  87  Pac.  687. 

The  actual  construction  of  the  road  fixes  the  time  as  definitely  as  approval 
of  the  map  of  location  would.  JAMESTOWN  &  N.  R.  CO.  v.  JONES,  177 
U.  S.  125,  20  Sup.  Ct.  568,  44  L.  Ed.  698. 

82  "Manifestly  the  land  forming  the  right  of  way  was  not  granted  with 
the  intent  that  it  might  be  absolutely  disposed  of  at  the  volition  of  the 
company.  On  the  contrary,  the  grant  was  explicitly  stated  to  be  for  a  des- 
ignated purpose,  one  which  negated  the  existence  of  the  power  to  volunta- 
rily alienate  the  right  of  way  or  any  portion  thereof.  The  substantial  con- 
sideration inducing  the  grant  was  the  perpetual  use  of  the  land  for  the 
legitimate  purpose  of  the  railroad,  just  as  though  the  land  had  been  con- 
veyed in  terms  to  have  and  to  hold  the  same  so  long  as  it  was  used  for  the 
railroad  right  of  way.  In  effect  the  grant  was  of  a  limited  fee  made  on 
an  implied  condition  of  reverter  in  the  event  that  the  company  ceased  to 
use  or  retain  the  land  for  the  purpose  for  which  it  was  granted.  This  be-^ 
ing  the  nature  of  the  title  to  the  land  granted  for  the  special  purpose  nan> 
ed,  it  is  evident  that,  to  give  such  efficacy  to  a  statute  of  limitations  of  a 
state  as  would  operate  to  confer  a  permanent  right  of  possession  thereof 
upon  an  individual  for  his  private  use  would  be  to  allow  that  to  be  done 
by  indirection  which  could  not  be  done  directly.  *  *  *  Of  course  noth- 
ing that  has  been  said  in  any  wise  imports  that  a  right  of  way  granted 
through  the  public  domain  within  a  state  is  not  amenable  to  the  police  pow- 
er of  the  state,"  exercised  in  providing  crossings,  etc.  NORTHERN  PAO. 
R.  CO.  v.  TOWNSEND,  190  U.  S.  267,  271,  272,  23  Sup.  Ct.  671,  47  L.  Ed. 
1044.  See,  also,  McLucas  v.  St.  Joseph  &  G.  I.  R.  Co.,  67  Neb.  603,  97  N. 
W.  312;  Oregon  Short  Line  R.  Co.  v.  Quigley,  10  Idaho,  770,  80  Pac.  401, 
and  cases  cited. 

ss  Oregon  Short  Line  R.  Co.  v.  Quigley,  supra.  See  Northern  Pac.  R. 
Co.  v.  Smith,  171  U.  S.  260,  18  Sup.  Ct.  794,  43  L.  Ed.  157. 

s*  PENNSYLVANIA  MIN.  &  IMP.  CO.  v.  EVERETT  &  M.  C.  R.  CO., 
29  Wash.  102,  69  Pac.  628.  See  St.  Joseph  &  D.  C.  R.  Co.  v.  Baldwin,  103 
U.  S.  426,  26  L.  Ed.  578;  Montana  Cent  R.  Co.,  25  Land  Dec.  Dep.  Int.  250. 


§§  18-19)  RAILROAD   LAND   GRANTS.  75 

Grants  of  Designated  Sections. 

The  grant  of  the  designated  alternate  sections  within  the  prescribed 
limits  on  each  side  of  the  line  of  the  road,  which  are  "floating"  lands 
until  the  line  of  the  road  is  defined  and  approved,  and  "in  place"  lands 
thereafter,  was  known  as  a  grant  in  praesenti ;  i.  e.,  the  title  passed  as 
soon  after  the  definite  location  of  the  line  as  the  sections  were  surveyed 
and  identified  by  number,  or,  if  the  government  survey  of  the  sections 
preceded  the  definite  location  of  the  line  of  the  road,  then  immediately 
upon  that  location,  and  forthwith  that  title  related  back  to  the  date  of 
the  passage  of  the  land  grant  act.85  As  a  consequence  the  filing  of  the 
map  of  definite  location  and  its  acceptance  by  the  Secretary  of  the  In- 
terior was  a  final  election  by  the  railroad  company  to  take  only  the 
lands  allowable  according  to  that  map,  or  the  lieu  lands  provided  in 
their  place.86  On  the  completion  of  the  road  the  title  to  granted  lands 
not  excepted  by  the  act  passes,  without  a  selection  by  the  road  or  ap- 
proval by  the  Secretary  of  the  Interior.87  In  the  case  of  in  place  sec- 
tions bona  fide  settlers  within  the  exterior  limits  of  the  grant  prior  to 
the  definite  location  of  the  road  are  protected.88  The  same,  of  course, 
holds  true  of  mining  claim  locators. 

But  with  reference  to  the  unlocated  mineral  lands  in  the  sections  in 
place  there  is  no  doubt  that  the  mineral  reservations  in  the  land  grant 
acts  apply.  That  matter  was  determined  by  the  case  of  Harden  v. 
Northern  Pac.  R.  Co.,89  which  involved  the  grant  to  the  Northern 

85DESERET  SALT  CO.  v.  TARPEY,  142  U.  S.  241,  12  Sup.  Ct.  158,  35 
L.  Ed.  999;  UNITED  STATES  v.  MONTANA  LUMBER  CO.,  196  U.  S. 
573,  25  Sup.  Ct.  367,  49  L.  Ed.  604;  Southern  Pac.  R.  Co.  v.  Lipman,  148 
Cal.  480,  83  Pac.  445;  Walbridge  v.  Board  of  Com'rs  of  Russell  County, 
87  Kan.  341,  86  Pac.  473;  Wiese  v.  Union  Pac.  R.  Co.  (Neb.)  108  N.  W. 
75.  See  United  States  v.  Oregon  &  C.  R.  Co.,  176  U.  S.  28,  20  Sup.  Ct.  261, 
44  L.  Ed.  358.  In  Sage  v.  Rudnick,  91  Minn.  325,  98  N.  W.  89,  100  N.  W. 
106,  it  is  held  accordingly  that  adverse  possession  of  granted  lands  runs 
against  the  railroad  from  the  time  of  the  filing  of  the  map  of  definite 
location. 

se  See  Smith  v.  Northern  Pac.  R.  Co.,  58  Fed.  513,  7  C.  C.  A.  397;  North- 
ern Pac.  R.  Oo.  y.  Murray,  87  Fed.  648,  31  C.  C.  A.  183.  Prior  to  the  filing 
of  the  map  of  definite  location,  Congress  may  dispose  of  land  within  the 
exterior  limits  of  the  general  route  of  the  railroad  shown  in  the  map  of 
that  route.  United  States  v.  Oregon  &  C.  R.  Co.,  176  U.  S.  28,  20  Sup.  Ct. 
261,  44  L.  Ed.  358;  Wilcox  v.  Eastern  Oregon  Land  Oo.,  176  U.  S.  51,  20 
Sup.  Ct.  269,  44  L.  Ed.  368. 

87  HOWARD  v.  PERRIN,  200  U.  S.  71,  26  Sup.  Ct.  195,  50  L.  Ed.  374. 
See  Jamestown  v.  Northern  Pac.  R.  Co.,  177  U.  S.  125,  20  Sup.  Ct.  568, 
44  L.  Ed.  698;  Wallula  Pac.  Ry.  Co.  v.  Portland  &  S.  R.  Co.  (C.  C.)  154 
Fed.  902. 

s  s  Nelson  v.  Northern  Pac.  R.  Co.,  188  U.  S.  108,  23  Sup.  Ct  302,  47  L, 
Ed.  406.  See  Sage  v.  United  States,  140  Fed.  65,  71  C.  C.  A.  404. 

8»154  U.  S.  2S8,  14  Sup.  Ct.  1030,  38  L.  Ed.  992. 


76          MINERAL  LANDS  AND  PUBLIC  LAND  GRANTS.       (Cll.  4: 

Pacific  Railroad  under  the  act  of  July  2,  1864;  the  line  of  the  road 
past  the  lands  in  controversy  having  been  fixed  by  the  filing  of  the 
requisite  map  of  definite  location  and  the  approval  thereof  July  6, 
1882.  The  lands  in  controversy  had  been  returned  by  the  surveyor 
general  as  agricultural,  and  prior  to  the  discovery  of  the  quartz  min- 
ing claims  in  1888  the  railroad  company  had  applied  to  the  land  depart- 
ment for  a  certificate  or  patent  for  the  land,  but  one  had  not  yet  been 
issued.  The  Supreme  Court  of  the  United  States  proceeded  to  estab- 
lish in  that  case  the  doctrine  that  a  railroad  grant  of  sections  in  place 
does  not  pass  mineral  lands.  Later  cases  establish  that  even  non- 
mineral  land  will  not  pass  under  the  railroad  grants,  if  a  claim  has 
been  made  to  it  under  the  mining  laws,  and  the  claim  is  pending  of 
record  in  the  land  office  at  the  time  the  line  of  the  road  is  establish- 
ed,90 or  if  the  lands  are  sub  judice  under  a  Mexican  land  grant  claim 
prior  to  the  act  of  1891. 91  The  Barden  Case  is  so  important  that  it 
must  be  quoted  from: 

"The  grant  was  of  20  alternate  sections  of  land,  designated  by  odd 
numbers,  on  each  side  of  the  road  which  the  plaintiff  was  authorized 
to  construct — a  tract  of  2,000  miles  in  length  and  40  miles  in  width, 
constituting  a  territory  of  80,000  square  miles.  It  is  true  that  the 
grant  was  a  float,  and  the  location  of  the  sections  could  not  be  made 
until  the  line  of  the  proposed  road  had  become  definitely  fixed.  The 
ascertainment  of  the  location  of  the  sections  in  no  respects  affected  the 
nature  of  the  lands  or  the  conditions  on  which  their  grant  was  made. 
If  swamp  lands  or  timber  lands,  or  mineral  lands  previously,  they  con- 
tinued so  afterwards.  It  is  also  true  that  the  grant  was  one  in  prae- 
senti  of  lands  to  be  afterwards  located.  From  the  immense  territory 
from  which  the  sections  were  to  be  taken  it  could  not  be  known  where 
they  would  fall  until  the  line  of  the  road  was  established.  Then  the 
grant  attached  to  them,  subject  to  certain  specified  exceptions ;  that  is, 
the  sections,  or  parts  of  sections,  which  had  been  previously  granted, 

»o  NORTHERN  PAG.  R.  CO.  v.  SANDERS,  166  U.  S.  620,  17  Sup.  Ct. 
671,  41  D.  Ed.  1139.  But  see  Bonner  v.  Rio  Grande  S.  R.  Co.,  31  Colo. 
446,  72  Pac.  1065.  U.  S.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (C.  C.  A.)  160  Fed. 
818.  Where  a  claim  of  record  in  the  land  office  has  in  fact  been  adandoned 
prior  to  the  selection  of  the  land  by  the  railroad  as  lieu  lands,  the  rail- 
road may  take.  Oregon  &  C.  R,  Co.  v.  United  States,  190  U.  S.  386,  23  Sup. 
Ct.  673,  47  L.  Ed.  1012.  But  it  may  not  take  lands  abandoned  by  home- 
steaders after  the  grant.  St.  Paul,  M.  &  M.  Ry.  Co.  v.  Donohue,  210  U.  S. 

21,  28  Sup.  Ct.  600,  52  L.  Ed.  .  The  railroad  may  also  take  lands  within 

the  primary  or  place  limits  of  the  grant  abandoned  prior  to  the  grant.  United 
States  v.  Oregon  &  C.  R.  Co.  (C.  C.)  152  Fed.  .473. 

»i  SOUTHERN  PAC.  R.  CO.  V.  UNITED  STATES,  200  U.  S.  354,  26  Sup. 
Ct.  298,  50  U  Ed.  512. 


§§  18-19)  RAILROAD   LAND   GRANTS.  77 

sold,  reserved,  occupied  by  homestead  settlers,  or  pre-empted  or  other- 
wise disposed  of,  were  excepted,  and  the  title  of  its  other  sections  or 
parts  of  sections  attached  as  of  the  date  of  the  grant,  so  as  to  cut  off 
intervening  claimants.  In  that  sense  the  grant  was  a  present  one. 
But  it  was  still,  as  such  grant,  subject  to  the  exception  of  mineral 
lands  made  at  its  date  or  then  excluded  therefrom  by  conditions  an- 
nexed. Whatever  the  location  of  the  sections,  and  whatever  the  ex- 
ceptions then  arising,  there  remained  that  original  exception  declared 
in  the  creation  of  the  grant.  The  location  of  the  sections  and  the 
exceptions  from  other  causes  in  no  respect  affected  that  one  or  limited 
its  operation.  There  is  no  language  in  the  act  from  which  an  inference 
to  that  effect  can  be  drawn,  in  the  face  of  its  declaration  that  all  mineral 
lands  are  thereby  'excluded  from  its  operations/  and  of  the  joint  res- 
olution of  1865  that  'no  act  of  the  Thirty-Eighth  Congress  [that  is, 
of  the  previous  session  of  1864]  granting  lands  to  states  or  corpora- 
tions, to  aid  in  the  construction  of  roads  or  for  other  purposes,  shall  be 
so  construed  as  to  embrace  mineral  lands/ 

"The  plaintiff,  however,  appears  to  labor  under  the  persuasion  that 
only  those  mineral  lands  were  excepted  from  the  grant  which  were 
known  to  be  such  on  the  identification  of  the  granted  sections  by  the 
definite  location  of  the  proposed  road  and  the  ascertainment  at  that 
time  of  the  exceptions  from  them  of  parcels  of  land  previously  disposed 
of,  and  that  the  want  of  such  knowledge  operated  in  some  way  to 
eliminate  the  reservation  made  by  Congress  of  the  mineral  lands.  But 
how  the  absence  of  such  knowledge  on  the  ascertainment  of  the  sec- 
tions granted  and  the  parcels  of  land  embraced  therein  previously  dis- 
posed of  had  the  effect,  or  could  have  the  effect,  to  eliminate  the  res- 
ervation of  mineral  la'nds  from  the  act  of  Congress,  we  are  unable  to 
comprehend.  Such  a  conclusion  can  only  arise  from  an  impression 
that  a  grant  of  land  cannot  be  made  without  carrying  the  minerals 
therein;  and  yet  the  reverse  is  the  experience  of  every  day.  The 
granting  of  lands,  either  by  the  government  or  individuals,  with  a 
reservation  of  certain  quarries  therein,  as  of  marble,  or  granite,  or 
slate,  or  of  certain  mines,  as  of  copper,  or  lead,  or  iron  found  therein, 
is  not  an  uncommon  proceeding,  and  the  knowledge  or  want  of  knowl- 
edge at  the  time  by  the  grantee  in  such  cases  of  the  property  reserved 
in  no  respect  affects  the  transfer  to  him  of  the  title  to  it.  No  one  will 
affirm  that  want  of  such  knowledge,  on  the  identification  of  the  lands 
granted  containing  the  reserved  quarries  or  mines,  would  vacate  the 
reservation,  and  we  are  unable  to  perceive  any  more  reason  from 
that  cause  for  eliminating  the  reservation  of  minerals  in  the  present  case 
from  the  grant  of  the  government  than  for  eliminating  for  a  like  cause 
the  reservation  of  quarries  or  mines  in  the  cases  supposed.  And  it 


78  MINERAL  LANDS   AND   PUBLIC   LAND   GRANTS.  (Cll.  4 

will  hardly  be  pretended  that  Congress  has  not  the  power  to  grant  por- 
tions of  the  public  land,  with  a  reservation  of  any  severable  products 
thereof,  whether  minerals  or  quarries  contained  therein,  and  whether 
known  or  unknown ;  yet  such  must  be  the  contention  of  the  plain- 
tiff, or  its  conclusion  will  fall  to  the  ground. 

''The  cases  cited  in  support  of  the  claim  of  the  plaintiff  only  show 
that  the  .identification  of  the  sections  granted  and  of  the  exceptions 
therefrom  of  parcels  of  land  previously  disposed  of  leaves  the  title 
of  the  remaining  sections,  or  parts  thereof,  to  attach  as  of  the  date 
of  the  grant,  but  has  absolutely  no  other  effect.  Such  is  the  purport, 
and  the  sole  purport,  of  the  cases  of  St.  Paul  &  P.  R.  Co.  v.  Northern 
Pac.  R.  Co.,  139  U.  S.  1,  5,  11  Sup.  Ct.  389,  35  L.  Ed.  77,  and  Deseret 
Salt  Co.  v.  Tarpey,  142  U.  S.  241,  247,  12  Sup.  Ct.  158,  35  L.  Ed.  999, 
cited  by  the  plaintiff.  In  both  of  those  cases  the  writer  of  this  opin- 
ion had  the  honor  to  write  the  opinions  of  this  court ;  and  it  was  never 
asserted  or  pretended  that  they  decided  anything  whatever  respecting 
the  minerals,  but  only  that  the  title  to  the  lands  granted  took  effect,  with 
certain  designated  exceptions,  as  of  the  date  of  the  grant.  They  never 
decided  anything  else.  And  what  was  that  title  ?  It  was  of  the  lands 
which  at  the  time  of  the  grant  were  not  reserved  as  minerals,  and  of 
the  lands  which  at  the  time  of  the  location  had  not  been  sold,  reserved, 
or  to  which  a  pre-emption  or  homestead  right  had  not  attached.  If 
one  were  to  sell  land,  reserving  therefrom  the  minerals  of  gold  or 
silver  found  therein,  and  tell  the  purchaser  to  take  the  surveyor  and 
measure  off  the  land,  would  it  be  urged  or  pretended  that  the  moment 
the  surveyor  ascertained  the  boundaries  of  the  land  sold  the  reservation 
of  the  minerals  then  undiscovered  would  be  eliminated?  Would  any 
one  uphold  the  reasoning,  or  the  doctrine,  which  would  assert  such 
a  conclusion?  And  can  any  one  see  the  difference  between  the  case 
now  before  us  and  the  case  supposed?  Not  a  word  was  said  or  sug- 
gested in  the  cases  cited  about  the  elimination  of  the  reservation  for 
that  cause;  and  not  only  in  the  cases  cited  by  the  plaintiff,  but  in  a 
multitude  of  other  cases,  almost  without  number,  a  like  silence  was 
observed.  In  none  of  them  was  it  ever  pretended  that  the  ascertain- 
ment of  the  location  of  the  lands  granted  operated  to  withdraw  from 
the  grant  the  reservation  of  the  minerals  then  undisclosed.  The  grant 
did  not  exist  without  the  exception  of  minerals  therefrom,  and  Con- 
gress has  declared,  in  positive  terms,  that  the  act  shall  not  be  construed 
to  embrace  them,  and  there  is  nothing  in  any  of  the  cases  cited  in  the 
plaintiff's  contention  which  indicates  in  the  slightest  degree  that  the 
original  exception  was  subsequently  qualified. 

"It  seems  to  us  as  plain  as  language  can  make  it  that  the  intention 
of  Congress  was  to  exclude  from  the  grant  actual  mineral  lands,  wheth- 


§§  18-19)  RAILROAD   LAND   GRANTS.  79 

er  known  or  unknown,  and  not  merely  such  as  were  at  the  time  known 
to  be  mineral.  After  the  plaintiff  had  complied  with  all  the  conditions 
of  the  grant,  performed  every  duty  respecting  it,  and  among  other 
things  that  of  definitely  fixing  the  line  of  the  route,  its  grant  was  still 
limited  to  odd  sections  which  were  not  mineral  at  the  time  of  the  grant, 
and  also  to  those  which  were  not  reserved,  sold,  granted,  or  otherwise 
appropriated,  and  were  free  from  pre-emption  and  other  claims  or 
rights  at  the  time  the  line  of  the  road  was  definitely  fixed,  and  was 
coupled  with  the  condition  that  all  mineral  lands  were  excluded  from 
its  operation,  and  that,  in  lieu  thereof,  a  like  quantity  of  unoccupied 
and  unappropriated  agricultural  lands,  in  odd  sections,  nearest  to  the 
line  of  the  road,  might  be  selected.  There  is,  in  our  judgment,  a  funda- 
mental mistake  made  by  the  plaintiff  in  the  consideration  of  the 
grant.  Mineral  lands  were  not  conveyed,  but  by  the  grant  itself  and 
the  subsequent  resolution  of  Congress  cited  were  specifically  reserved 
to  the  United  States  and  excepted  from  the  operations  of  the  grant. 
Therefore  they  were  not  to  be  located  at  all,  and  if  in  fact  located  they 
could  not  pass  under  the  grant.  *  *  *  The  plaintiff  in  this  case, 
not  having  a  patent,  and  relying  solely  upon  its  grant,  which  gives  no  ti- 
tle to  the  minerals  within  any  of  its  lands,  shows  by  its  complaint  no 
cause  of  action  for  the  possession  of  the  mineral  lands  claimed."  92 
In  a  still  later  case  it  has  been  held  that  lands  valuable  solely  or 
chiefly  for  granite  quarries  are  mineral  lands  within  the  meaning  of 
the  exception  of  mineral  lands  in  the  grant  made  by  the  act  of  July  2, 
1864.93 

But,  while  the  minerals  in  the  lands  are  excepted  from  the  grant 
even  where  patents  issue  to  the  railroad  for  the  lands,$$  it  seems 
that  no  valid  mining  location  can  be  made  on  the  lands,  for  the 
reason  that  the  surface  of  the  lands  belongs  to  the  railroad.  Not  only 
do  the  mining  statutes  provide  no  method  of  getting  possession  of  or 
locating  minerals  in  the  soil,  except  where  a  surface  embracing  or 
over  the  minerals  is  unappropriated  public  land  of  the  United  States,9* 

»2  HARDEN  v.  NORTHERN  PAG.  R.  CO.,  154  U.  S.  288,  313-316,  332,  14 
Sup.  Ct.  1030,  38  L.  Ed.  992. 

93  NORTHERN  PAG.  R.  CO.  V.  SODERBERG,  188  U.  S.  526,  23  Sup. 
Ct.  365,  47  L.  Ed.  575. 

$t  A  patent  issued  to  a  railroad  for  known  mineral  lands  was  held  to  be 
void  in  United  States  v.  Central  Pac.  R.  Oo.  (C.  C.)  84  Fed.  218.  In  a  suit 
by  the  United  States  to  cancel  a  patent  issued  to  a  railroad  for  granted 
land  claimed  to  be  mineral,  the  burden  is  on  the  complainant  to  show,  not 
only  that  the  land  was  known  mineral  land  at  the  time  of  the  patent,  but 
also  that  it  was  chiefly  valuable  for  mineral  purposes.  United  States  v. 
Central  Pac.  R.  Co.  (C.  C.)  93  Fed.  871. 

»*TRAPHAGEN  v.   KIRK,   30   Mont.   562,   77  Pac.   58,   and   cases  cited. 


80          MINERAL  LANDS  AND  PUBLIC  LAND  GRANTS.       (Ch.  4 

but  it  is  also  impossible  to  initiate  a  location  by  trespass  and  have  it 
valid,  and  both  of  these  facts  stand  in  the  way  of  a  valid  location  of 
minerals  in  railroad  lands. 

While  mineral  lands  are  excepted  by  the  railroad  land  grant  acts 
from  the  grants  of  sections  in  place,  the  railroad  company  is,  of  course, 
entitled  to  its  day  in  court  in  the  land  department  on  the  question  of 
whether  the  land  really  is  mineral.  That  right  of  the  railroad  company 
merely  requires  that  notice  be  given  to  it  in  some  sufficient  way  before 
the  land  department  disposes  of  the  land  as  mineral.  The  publication 
of  notice  of  application  for  patent  by  a  mineral  land  claimant  in  the 
manner  required  by  statute  is  such  sufficient  notice;95  but  otherwise 
personal  notice  would  seem  to  be  required.96  The  land  department  re- 
quires "prompt  and  appropriate  notice"  to  the  railroad's  grantees.97 

Grants  of  Lieu  or  Indemnity  Land. 

Lieu  or  indemnity  lands,'  of  course,  cannot  pass  in  prsesenti.  They 
depend  upon  deficiencies  in  the  "in  place"  sections,  and  cannot  be  de- 
termined until  those  deficiencies  are  ascertained.  As  in  the  case  of 
state  indemnity  lands,  the  title  does  not  pass  until  after  the  lands  have 
been  selected  and  have  been  certified  by  the  Secretary  of  the  In- 
terior.98 Homestead  entries  within  indemnity  limits,  made  in  good 
faith  prior  to  such  selection  by  and  certification  to  the  railroad,  will 
be  given  priority.99  Lands  within  the  indemnity  limits  of  a  grant 
to  a  railroad  do  not  pass,  on  the  forfeiture  of  such  grant,  to  a  second 
railroad,  although  within  the  place  limits  of  the  grant  which  was  made 

See  Hill  v.  Martin  (Tex.  Civ.  App.)  70  S.  W.  430;  Gleeson  v.  Martin  White 
Min.  Co.,  13  Nev.  442. 

95  Northern  Pac.  R.  Co.  v.  Cannon,  54  Fed.  252,  4  C.  O.  A.  303. 

»6  See  McCloud  v.  Central  Pac.  R.  Co.,  29  Land  Dec.  Dep.  Int.  27. 

97  Instructions,  33  Land  Dec.  Dep.  Int.  262. 

98  SJOLI  v.  DRESCHEL,  199  U.  S.  564,  26  Sup.  Ct  154,  50  L.  Ed.  311;   Ore- 
gon &  C.  R.  Co.  v.  United  States,  189  U.  S.  103,  23  Sup.  Ot  615,  47  K  Ed.  726 ; 
United  States  v.  Missouri,  K.  &  T.  R.  Co.,  141  U.  S.  358,  12  Sup.  Ct.  13,  35  L. 
Ed.  766;    Sage  v.  Maxwell,  91  Minn.  527,  99  N.  W.  42.    The  approval  by  the 
land  department  of  lieu  selections  made  in  sections  subject  only  to  entry  un- 
der homestead  laws  does  not  operate  to  vest  title  in  the  railroad  company. 
Clark  v.  Herington,  186  U.  S.  206,  22  Sup.  Ct.  872,  46  L.  Ed.  1128.    The  right 
of  a  railroad  does  not  attach  to  any  specific  lands  within  the  indemnity  limits 
of  its  grant  until  selection,  notwithstanding  the  loss  on  account  of  which  in- 
demnity might  be  taken  Is  ascertained  to  be  largely  in  excess  of  all  land  sub- 
ject to  indemnity  selection.    Oregon  &  C.  R.  Co.,  36  Land  Dec.  Dep.  Int.  349. 

9»  Sjoli  v.  Dreschel,  199  U.  S.  564,  26  Sup.  Ct.  154,  50  L.  Ed.  311;  Hoyt  v. 
Weyerhaeuser  (C.  C.  A.)  161  Fed.  324 ;  Osborn  v.  Froyseth  (Minn.)  116  N.  W. 
1113.  That  the  land  may  be  entered  as  a  homestead  after  the  filing  of  the  list 
of  selections  of  indemnity  land  by  the  railroad,  but  prior  to  the  approval 


§§  18-19)  RAILROAD  LAND   GRANTS.  81 

to  the  second  railroad  prior  to  the  forfeiture  of  the  grant  to  the  first 
railroad,  but,  instead,  become  a  part  of  the  public  land  of  the  United 
States.100  "•'•*'. 

That  lieu  or  indemnity  lands  must  be  nonmineral  is  as  clear  as  that 
the  "in  place"  sections  must  be  so.101  The  language  of  the  joint  reso- 
lution, that  no  act  "granting  lands  to  states  or  corporations  to  aid  in 
the  construction  of  roads  or  for  other  purposes  *  *  *  shall  be  so 
construed  as  to  embrace  mineral  lands,"  etc.,  leaves  no  room  for  doubt. 

The  Classification  of  Railroad  Lands. 

By  the  act  of  February  26,  1895,102  Congress  provided  for  commis- 
sioners to  determine  the  character  of  railroad  lands  granted  in  Idaho 
and  Montana.  That  act  merely  relates  to  the  odd-numbered  railroad 
sections;  the  character  of  the  even-numbered  sections,  in  which  the 
railroad  company  are  not  interested,  being  involved  only  so  far  as  they 
help  fix  the  character  of  the  odd-numbered  sections.103  The  com- 
missioners have  hearings  and  report  their  determinations  to  the  land 
department,  and  their  work  is  only  final  when  approved  by  the  Sec- 
retary of  the  Interior.  Their  return  is  not  conclusive,  and  on  a  sub- 
sequent showing  that  land  classified  by  them  as  mineral  is  really  not 
mineral  the  land  department  may  make  such  disposition  of  the  land 
as  is  proper.104  The  classification  of  land  by  the  commissioners  as 
mineral,  and  the  final  approval  of  such  classification  by  the  Secretary 

of  the  list  by  the  Secretary,  is  declared  in  Northern  Pac.  Ry.  Co.  v.  Wass 
(Minn.)  116  N.  W.  937.  Bona  fide  settlers  within  indemnity  limits  prior 
to  the  definite  location  of  the  road  will  be  protected,  even  though  it  afterwards 
appears  that  all  the  sections  in  such  limits  are  needed  to  supply  deficiencies. 
OREGON  &  C.  R,  CO.  v.  UNITED  STATES,  189  U.  S.  103,  23  Sup.  Ct  615,  47 
L.  Ed.  726.  Or  that  the  land  was  withdrawn  without  authority  of  law  from 
homestead  entry.  Brandon  v.  Ard  (U.  S.)  29  Sup.  Ct.  1,  53  L.  Ed. . 

100  San  Jose  Land  &  Water  Co.  v.  San  Jose  Ranch  Co.,  189  U.  S.  177,  23  Sup. 
Ct.  487,  47  L.  Ed.  765,  and  cases  cited ;   Northern  Lumber  Co.  v.  O'Brien,  204 
U.  S.  190,  27  Sup.  Ct.  249,  51  L.  Ed.  438.    See  St.  Paul,  M.  &  M.  R.  Co.  v.  Don- 

ohue,  210  U.  S.  21,  28  Sup.  Ct  600,  52  L.  Ed.  .     No  one  but  the  United 

States  may  forfeit  the  grant.    Spokane  &  B.  O.  Ry..  Co.  v.  Washington  &  G.  N. 
Ry.  Co.  (Wash.)  95  Pac.  64,  and  cases  cited. 

101  Southern  Pac.  R.  Co.  v.  Allen  Gold  Min.  Co.,  13  Land  Dec.  Dep.  Int.  165. 
See  Mullen  v.  United  States,  118  U.  S.  271,  6  Sup.  Ct.  1041,  30  L,  Ed.  170. 

102  Chapter  131,  28  Stat  683. 

103  Instructions,  26  Land  Dec.  Dep.  Int.  684.     Since  the  act  does  not  au- 
thorize the  classification  of  lands  in  even-numbered  sections,  the  fact  that  such 
lands  are  classified  as  mineral  will  not  avail  against  the  surveyor  general's 
return  of  the  land  as  nonmineral  at  the  time  of  actual  government  survey. 
Northern  Pacific  Ry.  Co.  v.  State  of  Idaho,  37  Land  Dec.  Dep.  Int  (Advance 
Sheets)  68. 

104  LYNCH  v.  UNITED  STATES,  138  Fed.  535,  71  C.  C.  A.  59.    See  Hotter 
v.  Northern  Pac.  R.  Co.,  30  Land  Dec.  Dep.  Int.  442. 

COST.MIN.L.— 6 


82          MINERAL  LANDS  AND  PUBLIC  LAND  GRANTS.       (Ch.  4 

of  the  Interior,  is,  in  effect,  however,  a  cancellation  of  a  previous  selec- 
tion of  such  land  by  the  railroad,  and  the  latter  can  question  the  char- 
acter of  the  land  only  for  fraud  in  classification.105  An  approved 
classification  of  lands  under  the  provisions  of  the  act  will  not  be  in- 
quired into  upon  a  protest  filed  subsequently  to  the  time  allowed  in 
the  act  for  the  filing  of  protests,  where  the  protest  contains  no  com- 
petent allegations  that  there  was  such  irregularity  in  the  classification 
as  to  vitiate  it.106 


y.  Northern  Pac.  R.  Co.,  29  Land   Dec.  Dep.  Int.  675;   Lamb  v. 
Northern  Pac.  R.  Co.,  29  Land  Dec.  Dep.  Int  102. 

loe  Beveridge  v.  Northern  Pac,  Ry.  Co.,  36  Land  Dec.  Dep.  Int  40. 


§  20)  MINERAL  LANDS  AND  HOMESTEAD,  ETC. ,  ENTRIES.  83 


CHAPTER  V. 

THE  RELATION  BETWEEN  MINERAL  LANDS  AND  HOMESTEAD, 
TIMBER,  AND  DESERT  ENTRIES. 

20.  Homestead  Entries. 

21.  Timber  and  Stone  Land  Entries. 

22.  Desert  Entries. 

Since  the  pre-emption  laws  were  repealed  by  the  act  of  March  3, 
1891,1  the  homestead  laws  have  been  the  chief  mode  of  acquiring 
title  to  nonmineral  lands,  though  under  the  stone  and  timber  act  of 
June  3,  1878,2  as  amended  by  the  act  of  August  4,  1892,3  lands  chief- 
ly valuable  for  timber  may  also  be  acquired,  and  under  the  act  of 
March  3,  1877,*  as  amended  by  the  act  of  March  3,  1891,6  desert 
lands  may  be  taken  up. 


HOMESTEAD  ENTRIES. 

20.  The  issuance  of  a  homestead  patent  for  land  is  an  authoritative  ad- 
judication by  the  land  department  that  the  land  is  nonmineral, 
and,  subject  to  the  right  of  the  United  States  to  have  it  set 
aside  in  equity  for  fraud,  the  patent  passes  the  title  to  the  land 
to  the  patentee,  even  though  he  knows  the  land  to  be  mineral. 
It  is  only  prior  to  the  patent  that  the  question  of  the  mineral 
or  nonmineral  character  of  the  land  may  be  litigated  in  the 
land  department. 

The  homestead  act  (Act  May  20,  1862,  c.  75,  12  Stat.  392)  pro- 
vides that  "every  person  who  is  the  head  of  a  family,  or  who  has 
arrived  "at  the  age  of  twenty-one  years,  and  is  a  citizen  of  the  United 
States  or  who  has  filed  his  declaration  of  intention  to  become  such,  as 
required  by  the  naturalization  laws  shall  be  entitled  to  enter  one- 
quarter  section,  or  a  less  quantity,  of  unappropriated  public  lands,  to 
be  located  in  a  body  in  conformity  to  the  legal  subdivisions  of  the  pub- 
lic lands ;  but  no  person  who  is  the  proprietor  of  more  than  one  hun- 
dred and  sixty  acres  of  land  in  any  state  or  territory  shall  acquire 
any  right  under  the  homestead  law.  And  every  person  owning  and 
residing  on  land  may,  under  the  provisions  of  this  section,  enter 

1  26  Stat.  1093,  c.  559  (U.  S.  Comp.  St.  1901,  p.  1531). 

2  20  Stat.  89,  c.  151  (U.  S.  Comp.  St.  1901,  p.  1545). 

3  27  Stat  348,  c.  375  (U.  S.  Comp.  St.  1901,  p.  1434). 

*  19  Stat.  377,  c.  107  (U.  S.  Comp.  St.  1901,  p.  1548).  'V, 

B  26  Stat.  1095,  c.  561  (U.  S.  Comp.  1901,  p.  1535). 


84  MINERAL  LANDS   AND  HOMESTEAD,  ETC.,  ENTRIES.          (Ch.  5 

other  land  lying  contiguous  to  his  land,  which  shall  not,  with  the  land 
so  already  owned  and  occupied,  exceed  in  the  aggregate  one  hundred 
and  sixty  acres."  ' 

Under  the  federal  statutes  the  land  is  entered  by  a  sworn  appli- 
cation, filed  by  the  settler  in  the  proper  land  office,  describing  the 
land  and  alleging  the  applicant's  qualifications  and  good  faith,  and 
by  a  payment  of  the  required  fee.  The  entry  can,  of  course,  be 
made  only  where  the  land  is  at  the  time  unappropriated.  When  the 
entry  is  made,  the  applicant  receives  a  receipt  for  the  fee  paid;  but 
no  certificate  is  given  him,  or  patent  issued  to  him,  for  five  years,  un- 
less after  14  months  the  entryman  commutes  his  entry  and  in  that  way 
gets  his  patent.7 

Mineral  Question  Prior  to  Patent. 

At  the  time  of  attempted  entry  the  first  question  about  minerals 
may  arise.  The  land  may  have  been  returned  by  the  surveyor  gen- 
eral as  mineral,  and  in  that  case  no  entry  can  be  made  until  the  ap- 
plicant "proves  off"  the  mineral,*  and  if  the  land  department  on  some 
former  hearing  decided  that  the  land  was  mineral  the  applicant  can 
prove  off  the  mineral  only  by  showing  the  result  of  subsequent  in- 
vestigations.8 If,  however,  the  applicant  proves  off  the  mineral  to 
the  satisfaction  of  the  land  office  and  is  allowed  to  make  entry  of  the 
land  as  agricultural,  the  burden  of  proof  thereafter  rests  on  one  as- 
serting it  to  be  mineral.9  No  matter  if  the  land  is  unquestionably 
mineral  nor  even  if  it  be  shown  that  a  mining  claim  was  located  there- 
on at  the  time  of  the  entry,  the  land  will  not  be  patented  to  the 
mineral  claimant  without  a  hearing  in  the  land  office  and  a  cancella- 
tion of  so  much  of  the  homestead  entry  as  affects  mineral  land.10 
Upon  the  hearing  the  question  is  simply :  Is  the  tract  more  valuable 
as  mineral  land  than  as  agricultural?  X1  The  land  having  been  entered, 
and  hence  being  prima  facie  nonmineral,  the  question  then  arises, 

«  Rev.  St.  U.  S.  §  2289,  as  amended  by  Act  March  3,  1891,  c.  561,  §  5,  26  Stat. 
1097  (U.  S.  Comp.  St.  1901,  p.  1388). 

T  Rev.  St.  U.  S.  §§  2291,  2301  (U.  S.  Comp.  St.  1901,  pp.  1390,  1406).  See 
the  land  department's  circular  of  "Suggestions  to  Homesteaders  and  Persons 
Desiring  to  Make  Homestead  Entries,"  approved  March  9,  1908. 

*  U.  S.  Mining  Regulations,  Approved  May  21,  1907,  Rule  100. 

«  Mackall  v.  Goodsell,  24  Land  Dec.  Dep.  Int.  553 ;   Leach  v.  Potter,  Id.  573. 

»  Majors  v.  Rinda,  24  Land  Dec.  Dep.  Int.  277 ;  Bay  v.  Oklahoma  Southern 
Gas,  Oil  &  Min.  Co.,  13  Okl.  425,  73  Pac.  936. 

10  Hooper  v.  Ferguson,  2  Land  Dec.  Dep.  Int.  712;  Elda  Mining  &  Milling 
Co.,  29  Land  Dec.  Dep.  Int.  279. 

uTinkham  v.  McCaffrey,  13  Land  Dec.  Dep.  Int.  517;  Long  v.  Isaksen,  23 
Land  Dec.  Dep.  Int.  353.  See  Aspen  Consol.  Min.  Co.  v.  Williams,  23  Land 
Dec.  Dep.  Int  34;  United  States  v.  Reed  (C.  C.)  28  Fed.  482.  Compare  Colo- 


§  20)  HOMESTEAD  ENTRIES.  85 

can  a  mining  location  be  made  upon  it?  The  answer  to  that  question 
depends  upon  the  answer  to  the  questions:  (1)  What  interest  the 
claimant  acquires  by  his  entry?  and  (2)  can  the  location  be  made 
without  its  being  initiated  by  a  trespass  ? 

The  first  question  may  arise  where  the  homstead  claimant  enters 
land  on  which  a  valid  subsisting  location  exists.  In  such  case,  says 
the  land  department,  the  entry  does  not  pass  to  the  homestead  claim- 
ant any  interest  in  the  mining  claim  land.12  There  is,  in  effect,  an 
exception  of  the  land  from  the  entry.  But  the  question  may  also 
arise  where  the  claim  is  not  located  until  after  the  entry.  There, 
also,  the  land  department  treats  the  mineral  land  as  excepted.13 
"The  fact  that  when  the  alleged  mining  claim  was  located  the  home- 
stead, entry  of  Currence  was  still  of  record  and  uncanceled  did  not 
of  itself  affect  the  validity  of  the  location.  No  vested  right  to  the 
lands  had  attached  under  the  entry,  and  until  such  right  should  at- 
tach the  lands  belong  to  the  United  States,  and,  if  mineral  in  char- 
acter, are  subject  to  location  and  purchase  under  the  mining  laws."  14 
This  ruling,  though  hard  on  the  homestead  claimant,  finds  some  justi- 
fication in  the  attitude  of  the  United  States  Supreme  Court  toward 
homestead  entries,  which  are  not  regarded  as  giving  such  vested 
rights  as  attach  under  the  mining  laws.15 

For  the  answer  to  the  second  question,  the  initiation  of  a  mining 

rado  Coal  &  Iron  Co.  v.  United  States,  123  U.  S.  307,  8  Sup.  Ct.  131,  31  L.  Ed. 
182. 

At  any  time  before  final  proof  and  payment  is  made  on  a  homestead  entry 
on  lands  in  a  district  which  is  subject  to  the  mining  laws,  a  cancellation  of 
the  entry  may  be  obtained  by  showing  that  the  land  is  more  valuable  for  min- 
eral than  for  agricultural  purposes.  Bay  v.  Oklahoma  Southern  Gas,  Oil  & 
Min.  Co.,  13  Okl.  425,  73  Pac.  936.  The  hearings  are  governed  by  Land  Office 
Mining  Regulations,  Approved  May  21,  1907,  Rules  99  to  111.  See  Appendix. 
The  decision  of  the  land  department  that  the  land  is  mineral  or  that  it  is  non- 
mineral  is  conclusive  on  the  courts.  Cragie  v.  Roberts  (Cal.  App.)  92  Pac.  97. 

12  Manners  Construction  Co.  v.  Rees,  31  Land  Dec.  Dep.  Int.  408. 

13  id. 

i*  Manners  Construction  Co.  v.  Rees,  31  Land  Dec.  Dep.  Int.  408,  410. 

IB  Yosemite  Valley  Case  (Hutchings  v.  Low)  15  Wall.  (U.  S.)  77,  21  L.  Ed. 
82.  See  Wagstaff  v.  Collins,  97  Fed.  3,  38  C.  C.  A.  19;  Shiver  v.  U.  S.,  159 
U.  S.  491,  16  Sup.  Ct.  54,  40  L.  Ed.  231.  Failure  to  make  entry,  of  course,  pre- 
vents rights  of  property  from  existing.  Gonzales  v.  French,  164  U.  S.  338,  17 
Sup.  Ct.  102,  41  L.  Ed.  458 ;  Camfield  v.  U.  S.,  167  U.  S.  518,  17  Sup.  Ct.  864, 
42  L.  Ed.  260. 

"It  appears  to  have  been  uniformly  held  by  the  federal  courts  that  an  entry 
[of  a  homestead]  in  the  proper  land  office  does  not  create  any  vested  right  in 
the  entryman  as  against  the  United  States,  and  that  Congress  may,  by  subse- 
quent legislation,  dispose  of  the  land  to  any  one  notwithstanding  such  entry." 
Oregon  Short  Line  R.  Co.  v.  Quigley,  10  Idaho,  770,  80  Pac.  401,  403,  and  cases 
cited. 


86  MINERAL   LANDS  AND   HOMESTEAD,  ETC.,  ENTRIES.          (Ch.  5 

location  by  trespass,  we  must  look  in  part  to  the  solution  of  the  first. 
If  the  mineral  land  is  a  true  exception  from  the  entry,  and  that 
seems  to  be  the  land  department's  view  of  the  case,  then  a  mineral 
claimant  who  keeps  to  excepted  surface  can  no  more  be  a  trespasser 
than  can  the  locator  of  a  known  lode  in  a  placer  who  keeps  on 
the  strip  25  feet  on  each  side  of  the  vein.  But  it  would  certainly  seem 
as  if  the  land  department  is  in  error  in  treating  any  surface  as  ex- 
eepted.  The  minerals  may  be  excepted;  but,  unlike  the  case  of  known 
lodes  in  placers  where  a  definite  number  of  feet  of  surface  is  excepted 
by  statute,  no  surface  seems  to  be  excepted  from  the  homestead  en- 
try. So  far  as  the  courts  are  concerned,  which  cannot  recognize  a 
location  of  a  lode  apart  from  a  surface,16  it  seems  clear  that  no  min- 
eral location  on  lands  covered  by  a  homestead  entry  can  be  recognized, 
unless  it  is  made  after  the  homestead  entry  has  been  canceled  by  the 
land  department  after  notice  and  hearing.17  If,  however,  as  seems  to 
be  the  case,  the  land  department  permits  a  mining  location  to  be  made 
on  a  homestead  entry  in  order  to  form  the  basis  of  a  contest  in  the  land 
department,  a  cancellation  of  the  homestead  entry  would  doubtless  be 
held  by  the  courts  to  inure  to  the  benefit  of  the  locator  so  favored  by 
the  land  department ;  f  but  that  question  has  not  come  up.  In  the 
case  of  a  homestead  entry,  however,  just  as  is  true  in  the  case  of  a 
placer  location,18  it  would  doubtless  be  such  a  trespass  to  go  upon  the 
land  to  prospect  for  unknown  lodes  as  to  make  the  location  thereby 
initiated  void,  even  from  the  land  department's  point  of  view.  "The 
fact  that  a  certain  tract  of  land  is  decided  upon  testimony  to  be  min- 
eral in  character  is  by  no  means  equivalent  to  an  award  of  the  land 
to  a  miner.  In  order  to  secure  a  patent  for  such  land,  he  must  pro- 
ceed as  in  other  cases,  in  accordance  with  the  foregoing  regulations."! 
Mineral  Question  after  Patent. 

So  much  for  the  situation  before  patent.  Where  a  homestead  patent 
is  issued  for  land,  that  is  an  authoritative  adjudication  by  the  land 

le'Traphagen  v.  Kirk,  30  Mont.  562,  77  Pac.  58,  and  cases  cited.  See  Heil 
v.  Martin  (Tex.  Civ.  App.)  70  S.  W.  430;  Gleeson  v.  Martin  White  Mining  Co., 
13  Nev.  442.  s 

17  Bay  v.  Oklahoma  Southern  Gas,  Oil  &  Min.  Co.,  13  Okl.  425,  73  Pac.  936; 
HEINE  v.  ROTH,  2  Alaska,  416 ;  Steele  v.  Tanana  Mines  Ry.  Co.,  2  Alaska, 
451  (decided  on  other  grounds  in  148  Fed.  678,  78  C.  C.  A.  412).  Until  the 
homestead  entry  is  canceled,  the  mining  claimant  cannot  be  permitted  to  oc- 
cupy the  land  jointly  with  the  homesteader.  Bay  v.  Oklahoma  Southern  Gas, 
Oil  &  Min.  Co.,  13  Okl.  425,  73  Pac.  936,  940. 

fThat  the  land  department  would  so  regard  it  if  the  mineral  claimant  stay- 
ed with  the  claim,  see  Adams  v.  Polglase,  32  Land  Dec.  Dep.  Int.  477,  33  Land 
Dec.  Dep.  Int.  30. 

is  CLIPPER  MIN.  CO.  v.  ELI  MINING  &  LAND  CO.,  194  U.  S.  220,  24  Sup, 
Ct.  632,  48  L.  Ed.  944. 

$  Land  Office  Mining  Regulations,  approved  May  21,  1907,  Rule  111. 


§  21)  TIMBER   ENTRIES.  87 

department  that  the  land  is  nonmineral.  If  in  fact  the  land  is  min- 
eral, and  was  known  to  be  so  at  the  time  of  patent,  the  title  never- 
theless passes.  The  patent  is  for  the  whole  quarter  section  or  other 
survey  subdivision,  and  while  it  stands  must  on  principle  cover  min- 
erals, known  as  well  as  unknown.19  Where  known  mineral  land 
has  been  entered  as  agricultural,  the  patent  may  be  set  aside  in  equity 
at  the  suit  of  the  United  States,20  and,  if  there  was  a  pre-existing 
valid  mining  location  on  the  ground  patented  to  the  homestead  set- 
tler, the  patentee  may  doubtless  be  declared  a  trustee  of  the  mining 
claim  ground  for  the  benefit  of  the  mining  claim  owner  at  the  suit 
of  the  latter.21  Any  veins  or  lodes  unknown  before  patent,  but  dis- 
covered after  patent,  belong,  of  course,  to  the  patentee.  "In  cases 
of  homestead,  pre-emption,  or  townsite  entries,  the  law  excludes 
mineral  lands;  but  it  was  never  doubted  that  the  title,  once  passed, 
was  free  from  all  conditions  of  subsequent  discoveries  of  mineral."  22 

TIMBER  AND  STONE  LAND  ENTRIES. 

21.  To  timber  entries  under  the  timber  and  stone  lands  act  the  same 
rules  about  minerals  apply  as  do  to  homestead  entries,  though 
•when  stone  entries  are  made  under  that  act  only  gold,  silver, 
cinnabar,  copper,  and  coal  deposits  are  excepted  from  the  en- 
tries. 

Under  the  timber  and  stone  lands  act,  the  same  doctrines  govern 
as  to  minerals  that  apply  to  homestead  entries,  except  that,  when 
stone  lands  are  acquired  under  the  act,  only  lands  containing  gold, 
silver,  cinnabar,  copper,  or  coal  are  excepted.  Building  stone  lands 
may  still  be  entered  under  this  act,  although  the  building  stone  act 
of  August  4,  1892, 23  allows  them  to  be  entered  as  placer  claims.24 
Until  the  final  certificate  of  purchase  is  issued  to  a  timber  applicant, 

i»  STANDARD  QUICKSILVER  CO.  v.  HABISHAW,  132  Cal.  115,  64  Pac. 
113.  But  see,  contra,  as  to  pre-emption,  Gold  Hill  Quartz  Mining  Co.  v.  Ish, 
5  Or.  104. 

20  Colorado  Coal  &  Iron  Co.  v.  U.  S.,  123  U.  S.  307,  8  Sup.  Ct.  131,  31  L.  Ed. 
182. 

21  See  Salmon  v.  Symonds,  30  Cal.  301. 

22  SHAW  v.  KELLOGG,  170  U.  S.  312,  332,  18  Sup.  Ct  632,  42  L.  Ed.  1050; 
Kirby  v.  Potter,  138  Cal.  686,  72  Pac.  338. 

23  27  Stat.  348,  c.  375  (U.  S.  Comp.  St.  1901,  p.  1434). 

24  Forsythe  v.  Weingart,  27  Land  Dec.  Dep.  Int.  680.    Lands  are  subject  to 
entry  under  the  timber  and  stone  act  so  long  as  they  are  chiefly  valuable  for 
stone,  even  though  under  existing  conditions  the  stone  may  not  be  marketable 
at  a  profit.    Narver  v.  Eastman,  34  Land  Dec.  Dep.  Int.  123.    Under  this  act 
one  who  takes  granite  from  the  public  domain  and  shapes  it  for  a  tombstone 
becomes  the  exclusive  owner  of  it,  although  he  does  not  acquire  the  exclusive 


88  MINERAL  LANDS  AND   HOMESTEAD,  ETC. ,  ENTRIES.  (Ch.  5 

the  lands,  if  mineral,  are  subject  to  exploration  and  purchase  under 
the  mining  laws;**  but  after  the  certificate  issues  to  the  timber  land 
applicant  a  subsequent  discovery  of  mineral  inures  to  the  purchaser  of 
the  lands.25  One  who  fraudulently  obtains  a  patent  under  the  timber 
act  to  land  on  which  another  has  a  valid  mining  location  will  be  made 
to  hold  the  legal  title  in  trust  for  that  other.ft 


DESERT  ENTRIES. 

22.  Desert  entries  are  governed  by  the  same  rules  as  to  minerals  as 
apply  to  homestead  entries. 

If  mineral  deposits  are  found  in  desert  land  entries,  the  same  rules 
apply  as  govern  in  the  case  of  homestead  entries.2* 

right  to  the  land  from  which  it  is  taken.  Sullivan  v.  Schultz,  22  Mont.  541, 
57  Pac.  279. 

**  The  surveyor  general's  return  that  the  land  is  timber  throws  the  burden 
of  proof  of  its  mineral  character  upon  the  person  asserting  it  against  a  claim- 
ant under  the  timber  and  stone  act.  Purtle  v.  Steffee,  31  Land  Dec.  Dep.  Int. 
400.  On  the  right  to  take  timber,  see  Gallagher  v.  Gray,  35  Land  Dec.  Dep. 
Int.  90. 

26Ohormicle  v.  Hiller,  26  Land  Dec.  Dep.  Int  9.  Public  land  covered  by  a 
heavy  growth  of  timber,  which  constitutes  its  chief  value,  is  held  subject  to 
entry  under  the  timber  and  stone  act,  although  it  would  be  fit  for  cultivation 
if  the  timber  were  removed.  Thayer  v.  Spratt,  189  U.  S.  346,  23  Sup.  Ct  576, 
47  L.  Ed.  845. 

tt  MERY  v.  BRODT,  121  Cal.  332,  53  Pac.  818. 

26  "Desert  land  claimants  will  rarely  come  in  conflict  with  mining  claim- 
ants. Of  course,  beds  of  gypsum,  borax,  nitrate,  and  carbonate  of  soda  are 
found  in  the  desert  regions ;  but  their  mineral  character  is  generally  so  obvi- 
ous that  no  controversy  is  likely  to  arise.  It  would  be  much  cheaper  and  more 
expeditious  for  a  claimant  to  enter  these  classes  of  lands  under  the  placer 
laws  than  to  attempt  to  acquire  title  under  the  onerous  provisions  of  the  desert 
land  law."  1  Lindley  on  Mines  (2d  Ed.)  §  212. 


§  23)     MINERAL  LANDS  AND  PUBLIC  LAND  RESERVATIONS.       89 


CHAPTER  VI. 

THE  RELATION  BETWEEN  MINERAL  LANDS  AND  THE  VARIOUS  PUB- 
LIC LAND  RESERVATIONS." 

23.  Indian  Reservations. 

24.  Military  Reservations. 

25.  National  Parks. 

26.  Forest  Reserves. 

27.  Reservoir  Sites, 

Those  parts  of  the  federal  public  domain  which  the  national  govern- 
ment has  not  parted  with,  but  which  for  various  public  purposes  it 
has  withdrawn  from  the  operation  of  the  mining  and  other  land  laws, 
may  be  grouped  under  the  title  of  "Land  Reservations,"  and,  so  group- 
ed, are  enumerated  as  follows:  (1)  Indian  reservations;  (2)  military 
reservations;  (3)  national  parks;  (4)  forest  reserves;  (5)  reservoir 
sites. 

INDIAN  RESERVATIONS. 

23.  Mining  locations,  properly  made  prior  to  the  creation  of  an  Indian 
reservation,  are  npheld;  but  mineral  lands  within  an  existing 
reservation  are  not  subject  to  location,  except  under  acts  spe- 
cifically providing  for  mining  locations  on  given  reservations. 
After  an  Indian  reservation  has  been  thrown  open  again,  min- 
ing locations  may,  of  course,  be  made. 

Under  executive  orders  reserving  lands  for  Indian  occupancy,  our 
Indian  reservations  have  been  created.  The  title  which  the  Indians 
have  to  the  lands  thus  reserved  is  one  of  occupancy  only,  unless  al- 
lotments are  made  which  confer  greater  rights,  and,  where  the  Unit- 
ed States  makes  the  Indian  reservation,  the  fee  is  in  the  United  States, 
subject  to  this  right  of  occupancy.  Since  the  title  is  in  the  United 
States,  the  federal  government  has  the  power,  should  it  see  fit,  to  pass 
title  to  lands  in  the  Indian  reservation  without  the  consent  of  the 
Indians.1  But  no  presumption  will  be  indulged  that  the  federal  govern- 
ment intended  to  exercise  that  power,  and,  even  if  it  does  actually 
exercise  it,  the  rights  of  occupancy  of  the  Indians  are  protected.2  It 
is  well  settled  that,  after  an  Indian  reservation  has  been  established 
by  the  federal  government,  the  land  embraced  within  the  reservation 

1  United  States  v.  Alaska  Packers'  Ass'n  (C.  C.)  79  Fed.  152. 

2  Buttz  v.  Northern  Pac.  R.  Co.,  119  U.  S.  55,  7  Sup.  Ct  100,  30  I*.  Ed.  330. 
United  States  v.  Moore  (C.  C.  A.)  161  Fed.  513. 


00  MINERAL   LANDS   AND   PUBLIC   LAND   RESERVATIONS.        (Ch.  6 

is  thereafter  not  unoccupied  land  of  the  United  States,  and  hence  is 
not  subject  to  new  mining  locations.  This  proposition  seems  to  have 
been  laid  down  first  in  French  v.  Lancaster,3  and  is  now  well  estab- 
lished.4 As  the  Supreme  Court  of  the  United  States  said  in  Kendall 
v.  San  Juan  Mining  Co.:  "The  effect  of  the  [Indian]  treaty  was  to 
exclude  all  intrusion  for  mining  or  other  private  pursuits  upon  the 
territory  thus  reserved  for  the  Indians.  It  prohibits  any  entry  of  the 
kind  upon  the  premises,  and  no  interest  could  be  claimed  or  enforced 
in  disregard  of  this  provision.  Not  until  the  withdrawal  of  the  land 
from  this  reservation  of  the  treaty  by  a  new  convention  with  the 
Indians,  and  one  which  would  throw  the  lands  open,  could  a  mining 
location  thereon  be  initiated  by  the  plaintiffs.  The  location  of  the 
Bear  lode,  having  been  made  whilst  the  treaty  was  in  force,  was  in- 
operative to  confer  any  rights  upon  the  plaintiffs."  B 

Mining  claims  cannot,  therefore,  be  located  on  existing  Indian 
reservations,  except  under  acts  specifically  allowing  such  locations.6 
Where  no  specific  statutory  authorization  for  such  locations  exists, 
then,  the  given  mining  location  is  invalid,  unless  it  either  antedated  the 
Indian  reservation  or  was  made  after  the  Indian  occupancy  was  ended 
and  the  lands  were  thrown  open  to  location.  If  the  mining  location 
was  made  before  the  Indian  reservation  was  created,  the  mining  loca- 
tion will  be  upheld  by  the  land  department,  and  so  will  a  valid  reloca- 
tion of  it  by  others.7  The  location  is  in  effect  a  prior  grant  of  posses- 
sory title  by  the  United  States  to  the  locator,  and  as  such  is  excepted 
from  the  Indian  reservation.  After  an  Indian  reservation  has  been 
thrown  open  again,  mining  locations  may,  of  course,  be  made*;  and 
it  has  further  been  held  that  a  mining  location,  invalid  because  made 
while  the  land  was  in  an  Indian  reservation,  was  validated  where  the 
locator,  who  was  in  possession  when  the  reservation  was  withdrawn, 

s  2  Dak.  346,  47  N.  W.  395. 

*  KENDALL  v.  SAN  JUAN  MINING  CO.,  9  Colo.  349,  12  Pac.  198 ;   144  U. 
S.  658,  12  Sup.  Ot.  779,  36  L.  Ed.  583.    Gibson  v.  Anderson,  131  Fed.  39,  65  C. 
C.  A.  277 ;    McFadden  v.  Mountain  View  Min.  &  Mill.  Co.,  97  Fed.  670,  38  C. 
C.  A.  354 ;  Acme  Cement  &  Plaster  Co.,  31  Land  Dec.  Dep.  Int.  125.    Compare 
King  v.  McAndrews,  111  Fed.  860,  50  C.  C.  A.  29. 

5  KENDALL  v.  SAN  JUAN  MIN.  CO.,  144  U.  S.  658,  12  Sup.  Ct.  779,  36  L. 
Ed.  583.  Compare  Spalding  v.  Chandler,  160  U.  S.  394,  16  Sup.  Ct.  360,  40  L. 
Ed.  469 ;  Missouri,  K.  &  T.  R.  Co.  v.  Roberts,  152  U.  S.  114,  14  Sup.  Ct.  496, 
38  L.  Ed.  377. 

e  U.  S.  v.  Four  Bottles  Sour  Mash  Whisky  (D.  C.)  90  Fed.  720. 

i  Navajo  Indian  Reservation,  30  Land  Dec.  Dep.  Int.  515. 

*  See  Collins  v.  Bubb  (O.  C.)  73  Fed.  735,  where  the  prospectors  were  not 
even  made  to  wait  for  the  president's  proclamation,  and  where  the  Indians 
were  not  allowed  to  select  as  part  of  their  allotments  lands  valuable  for  min- 
erals. 


§  24)  MILITARY   RESERVATIONS  91 

and  who  had  made  a  discovery,  proceeded  upon  such  withdrawal  to 
post  a  notice  and  to  mark  boundaries,  to  cause  a  proper  record  to  be 
made,  and,  in  addition  to  adopting  what  he  had  previously  done,  to 
perform  the  annual  labor  necessary  to  hold  the  claim.8  But  the  loca- 
tion, if  not  so  adopted  after  the  reopening  of  the  reservation,  must 
actually  be  made  after  such  reopening,  or  the  location  is  invalid.  Ac- 
cordingly, where  an  act  of  Congress  subjected  mineral  lands  in  an 
Indian  reservation  to  mineral  entry,  and  on  the  same  day  on  which  the 
act  was  passed  two  joint  resolutions  were  also  passed  postponing  the 
operation  of  the  act  for  seven  months,  a  location  made  the  day  the  act 
was  passed  was  held  invalid,  because  made  seven  months  too  soon.9 
Where  a  location  is  attempted  during  the  existence  of  the  Indian  reser- 
vation, it  is  held  to  be  invalid  as  against  a  location  made  after  the 
land  is  open  to  settlement.10  Moreover,  where  an  Indian  reservation  is 
opened  for  no  other  purpose  than  to  permit  the  location,  development, 
and  operation  of  mines,  a  clear  showing  that  the  ground  claimed  by 
location  contains  minerals  in  sufficient  quantity  to  pay  to  work,  and  that 
the  purpose  of  the  locator  is  to  develop  and  operate  mines,  is  re- 
quired.11 

MILITARY  RESERVATIONS. 

24.   Mineral  lands  in  military  reservations  are  in  the  same  situation  as 
such  lands  in  Indian  reservations. 

Military  reservations  are  established  by  presidential  proclamation 
and  vacated  in  the  same  way.12  The  mineral  lands  contained  in  them 

s  Caledonia  G.  M.  Co.  v.  Noonan,  3  Dak.  189,  14  N.  W.  426;  NOONAN  v. 
CALEDONIA  GOLD  MINING  CO.,  121  U.  S.  393,  7  Sup.  Ct  911,  30  L.  Ed. 
1061 ;  Golden  Terra  Min.  Co.  v.  Smith,  2  Dak.  377,  11  N.  W.  98.  The  mineral 
character  of  the  land  must  be  made  to  appear.  Durant  v.  Corbin  (C.  C.)  94 
Fed.  382.  A  dedication  of  a  right  of  way  made  by  the  claimant  during  the  ex- 
istence of  the  Indian  Reservation  was  enforced  against  him  after  the  Indian 
title  ceased  and  patent  issued  to  him,  in  City  of  Deadwood  v.  Whittaker,  12 
S.  D.  520,  81  N.  W.  908. 

»  Gibson  v.  Anderson,  131  Fed.  39,  65  C.  C.  A.  277.  See  Bay  v.  Oklahoma 
Southern  Gas,  Oil  &  Min.  Co.,  13  Okl.  425,  73  Pac.  936 ;  McFadden  v.  Moun- 
tain View  Min.  &  Mill.  Co.,  97  Fed.  670,  38  C.  C.  A.  354.  Though  the  lands  in 
Oklahoma,  acquired  by  treaty  from  the  Comanche,  Kiowa  and  Apache  Indian 
tribes,  were  classed  as  agricultural  lands,  they  were  subject  to  the  mineral 
laws  of  the  United  States.  Bay  v.  Oklahoma  Southern  Gas,  Oil  &  Min.  Co.,  13 
Okl.  425,  73  Pac.  936. 

10  KENDALL  v.  SAN  JUAN  MINING  CO.,  9  Colo.  349,  12  Pac.  198;    Id., 
144  U.  S.  658,  12  Sup.  Ct  779,  36  L.  Ed.  583. 

11  Durant  v.  Corbin  (C.  C.)  94  Fed.  382. 

12  See  Florida  Town  Imp.  Co.  v.  Bigalsky,  44  Fla.  771,  33  So.  450. 


92  MINERAL   LANDS   AND    PUBLIC   LAND   RESERVATIONS.        (Ch.  6 

seem  to  be  in  the  precise  situation  of  such  lands  in  an  Indian  reserva- 
tion. Mining  locations  made  previous  to  the  reservation  will  be  up- 
held by  the  land  department,13  but  not  those  made  during  the  existence 
of  the  reservation.14  The  only  serious  difficulty  in  the  matter  is  that 
the  government  may  need  to  exclude  the  mining  claimant  of  a  previous 
location  from  the  reservation ;  but,  of  course,  the  government,  if 
it  did  so,  could  not  forfeit  the  location  for  failure  in  the  perform- 
ance of  annual  labor.  Such  exclusion  of  the  claimant  by  the  War 
Department  would  simply  excuse  him  from  the  performance  of 
annual  labor  while  he  was  so  excluded.  As  to  claims  located  during 
the  military  reservation  and  adopted  after  its  vacation,  and  as  to  claims 
located  after  the  vacation,  the  rule  applicable  to  Indian  reservations 
would  seem  to  apply.15 

NATIONAL  PARKS. 

25.   Mineral  lands  in  national  parks  are  in  the  same  situation  as  snch 
lands  in  Indian  reservations. 

National  parks,  such  as  the  Yellowstone  Park  and  the  Yosemite  Val- 
ley, are  governed  by  the  same  rules  as  Indian  and  military  reserva- 
tions. Unless  the  acts  creating  them  allow  mineral  locations,  and 
usually  they  do  not,16  none  can  be  made  after  the  creation  of  the  parks. 


FOREST  RESERVES. 

20.   Mineral  lands  in  forest  reserves,  as  distinguished  from,  national 
parks,  are  open  to  location. 

Forest  reserves  are  really  national  parks,  except  that  they  are  made 
under  the  general  act  of  March  3,  1891, 17  while  the  so-called  parks  have 
usually  been  created  by  special  acts.  Forest  reservations  are  made  by 

is  Fort  Maginnis,  1  Land  Dec.  Dep.  Int.  552. 

i*  Id.  A  discovery  within  a  naval  reservation  will  not  sustain  a  location 
which  lies  partly  within  and  partly  without  such  reservation.  Behrends  v. 
Goldsteen,  1  Alaska,  518. 

is  By  Act  July  5,  1884,  c.  214,  §  5,  23  Stat.  104  (U.  S.  Comp.  St.  1901,  p.  1610), 
it  is  provided  that,  whenever  lands  containing  valuable  mineral  deposits  are 
vacated  by  the  reduction  or  abandonment  of  any  military  reservation,  they 
shall  be  disposed  of  exclusively  under  the  mineral  land  laws  of  the  United 
States. 

is  The  Mt  Rainier  national  park  act  allows  them.  Act  March  2,  1899,  c.  377, 
§  5,  30  Stat.  995. 

IT  26  Stat.  1103,  c.  561,  §  24  (U.  S.  Comp.  St  1901,  p.  1537). 


§  26)  FOREST   RESERVES.  93 

presidential  proclamation.18  There  is,  however,  a  very  important  dis- 
tinction between  forest  reserves  and  national  parks,  due  to  the  fact  that 
the  act  of  June  4,  1897,19  throws  open  to  location  and  entry  under  the 
mineral  laws  all  mineral  lands  in  forest  reservations,  and  allows  mining 
claimants  to  cut  timber  and  use  water  for  actual  mining  use  on  the 
mining  claims.  It  is  perfectly  clear,  therefore,  that  all  forest  reserves, 
as  distinguished  from  the  national  parks  governed  by  special  acts,  are 
open  to  mining  locations.20  The  purpose  of  the  forest  reserves  is  to 
protect  the  forest  region  from  destructive  fires  and  waste,  so  that  it 
may  be  available  for  agriculture  and  mining,  and  incidentally,  per- 
haps, to  assist  in  diminishing  spring  freshets  in  the  mountains.  Mining 
is  therefore  favored  in  forest  reserves,  and  roadways  and  other  rights 
of  way  are  authorized  for  mining  purposes.21 

Under  the  forest  reserve  act  of  June  4,  1897,22  and  the  act  of 
June  6,  1900,28  homestead  claimants  who  find  that  their  entries  or 
patented  lands  are  included  within  a  forest  reserve  can  make  lieu  se- 
lections elsewhere  of  lands  subject  to  homestead  entry,  with  full  time 
of  residence  credit.  It  of  course  follows  that  the  lieu  lands  are  sub- 
ject to  all  the  rules  about  homestead  entries  considered  heretofore. 
An  attempted  lieu  selection  in  a  township  not  yet  sectionized,  where 
the  selection  is  liable  to  be  defeated  by  prior  adverse  claims  or  by 
proof  that  the  land  selected  is  mineral,  has  been  held  to  pass  neither 
a  legal  nor  an  equitable  title.24  Known  mineral  land,  and  that  means 
known  when  the  choice  is  approved,25  cannot  be  selected.  A  miner- 
al claim  cannot  be  made  the  basis  of  a  lieu  selection.2' 

i«  If  the  proclamation  is  signed  by  the  Secretary  of  the  Interior,  it  will  be 
presumed  to  have  been  by  direction  of  the  President;  but  only  public  lands 
can  be  reserved.  United  States  v.  Blendauer  (D.  C.)  122  Fed.  703. 

i»  30  Stat.  36,  c.  2  (U.  S.  Comp.  St.  1901,  p.  1542). 

20  Instructions,  32  Land  Dec.  Dep.  Int.  307.    See  circular,  30  Land  Dec.  Dep. 
Int.  28,  §  19.     See,  also,  Act  Feb.  20,  1896,  c.  28,  29  Stat.  11  (U.  S.  Comp.  St. 
1901,  p.  1537). 

21  Act  Feb.  1,  1905,  c.  288,  §  4,  33  Stat  628  (U.  S.  Comp.  St.  Supp.  1907,  p. 
551). 

22  30  Stat.  11,  33-36,  c.  2  (U.  S.  Comp.  St  1901,  p.  1538). 

23  31  Stat.  588,  614,  c.  791. 

24  Peters  v.  Van  Horn,  37  Wash.  550,  79  Pac.  1110. 

26  Cosmos  Exploration  Co.  v.  Gray  Eagle  Oil  Co.,  112  Fed.  4,  50  C.  O.  A.  79, 
61  L.  R.  A.  230.    See  Kern  Oil  Co.  T.  Clarke,  31  Land  Dec.  Dep.  Int.  288. 
a«  Act  June  6,  1900,  c.  791,  31  Stat.  588,  614;  Instructions,  28  Land  Dec.  328. 


94  MINERAL   LANDS   AND   PUBLIC   LAND   RESERVATIONS.         (Ch.  6 


RESERVOIR  SITES. 

27.  Existing  mining  locations  can  be  taken  for  reservoir  sites  only  by 
condemnation.  Known  mineral  lands  can  be  taken  for  a  reser- 
voir site  by  the  government  only. 

Under  the  federal  statutes  reservoir  sites  may  be  located  by  (1) 
private  individuals  and  corporations  who  are  engaged  in  raising  live 
stock,  and  (2)  by  the  government  itself. 

(1)  By  the  express  provisions  of  the  act  providing  for  the  location 
of  reservoir  sites  by  individuals  and  corporations,  mineral  lands  can- 
not be  selected; 27  but,  if  a  reservoir  site  has  once  been  selected,  a  sub- 
sequent mining  location  on  it  is  doubtless  invalid,  unless  it  thereafter 
appears  that  the  land  is  not  required  for  reservoir  purposes.28 

(2)  Similar  rules  apply  to  the  selection  of  reservoir  sites  for  ir- 
rigation purposes  by  the  government  itself,  except,  of  course,  that  the 
government  may  select  unappropriated  mineral  land.     Mineral  loca- 
tions may  be  made  and  entered  for  patent,  subject  to  the  actual  loca- 
tion of  the  reservoir  site,  and  if  the  lands  located  are  not  needed  for 
reservoir  purposes  such  entries  may  be  perfected.29     A  mining  loca- 
tion, made  prior  to  the  selection  of  the  reservoir  site,  has  priority  as 
to  the  conflict  area.80 

By  the  act  of  June  17,  1902,81  Congress  provided  for  the  con- 
struction and  maintenance  of  irrigation  works  for  the  storage,  diver- 
sion, and  development  of  waters  for  the  reclamation  of  arid  and  semi- 
arid  lands  in  the  mining  law  states  and  territories  and  some  others. 
Under  that  act  the  Secretary  of  the  Interior  is  authorized  to  withdraw 
from  public  entry  the  lands  required  for  the  irrigation  works.  As  the 
act  does  not  except  mineral  lands,  the  action  of  the  secretary  in  with- 
drawing such  lands  would  doubtless  make  it  impossible  to  locate 
them.82  Previous  mining  locations,  of  course,  must  be  respected,33 
and,  if  needed  for  the  works,  must  be  taken  by  condemnation  pro- 
ceedings. 

27  Act  Jan.  13,  1897,  c.  11,  29  Stat.  484  (U.  S.  Comp.  St  1901,  p.  1574). 

28  See  Colomokas  Gold  Min.  Co.,  28  Land  Dec.  Dep.  Int.  172. 
20  Id. 

so  John  U.  Gabathuler,  15  Land  Dec.  Dep.  Int.  418. 
si  32  Stat.  388,  c.  1093,  §  3  (U.  S.  Comp.  St.  Supp.  1907,  p.  513). 
32  See  Instructions,  32  Land  Dec.  Dep.  Int.  387. 

ss  id. ;  Opinion,  34  Land  Dec.  Dep.  Int.  155.  But,  as  to  timber  and  stone 
lands,  see  Board  of  Control  v.  Torrence,  32  Land  Dec.  Dep.  Int.  472. 


MINERAL   LANDS   AND    TOWNSITES.  95 

CHAPTER  VII. 

THE  RELATION  BETWEEN  MINERAL   LANDS   AND  TOWNSITES. 

28.  L^nds  Subject  to  Townsite  Entry. 

29.  The  Location  of  Known  Veins  in  Townsites. 

"Whenever  any  portion  of  the  public  lands  have  been  or  may  be 
settled  upon  and  occupied  as  a  townsite,  not  subject  to  entry  under  the 
agricultural  pre-emption  laws,  it  is  lawful,  in  case  such  town  be  in- 
corporated, for  the  corporate  authorities  thereof,  and  if  not  incorporat- 
ed, for  the  judge  of  the  county  court  for  the  county  in  which  such 
town  is  situated,  to  enter  at  the  proper  land*office,  and  at  the  minimum 
price,  the  land  so  settled  and  occupied,  in  trust  for  the  several  use  and 
benefit  of  the  occupants  thereof,  according  to  their  respective  inter- 
ests, the  execution  of  which  trust,  as  to  the  disposal  of  the  lots  in 
such  town,  and  the  proceeds  of  the  sales  thereof,  to  be  conducted  un- 
der such  regulations  as  may  be  prescribed  by  the  legislative  author- 
ity of  the  state  or  territory  in  which  the  same  may  be  situated."  Rev. 
St.  U.  S.  §  2387  (U.  S.  Comp.  St.  1901,  p.  1457). 

"That  townsite  entries  may  be  made  by  incorporated  towns  and  cities 
on  the  mineral  lands  of  the  United  States,  but  no  title  shall  be  acquired 
by  such  towns  or  cities  to  any  vein  of  gold,  silver,  cinnabar,  copper,  or 
lead,  or  to  any  valid  mining  claim  or  possession  held  under  existing  law. 
When  mineral  veins  are  possessed  within  the  limits  of  an  incorpo- 
rated town  or  city,  and  such  possession  is  recognized  by  local  authority 
or  by  the  laws  of  the  United  States,  the  title  to  town  lots  shall  be  sub- 
ject to  such  recognized  possession  and  the  necessary  use  thereof  and 
when  entry  has  been  made  or  patent  issued  for  such  town  sites  to  such 
incorporated  town  or  city,  the  possessor  of  such  mineral  vein  may  enter 
and  receive  patent  for  such  mineral  vein,  and  the  surface  ground  ap- 
pertaining thereto:  provided,  that  no  entry  shall  be  made  by  such 
mineral  vein  claimant  for  surface  ground  where  the  owner  or  oc- 
cupier of  the  surface  ground  shall  have  had  possession  of  the  same  be- 
fore the  inception  of  the  title  of  the  mineral  vein  applicant."  Act 
March  3,  1891,  c.  561,  §  16,  26  Stat.  1101  (U.  S.  Comp.  St.  1901,  p. 
1459). 


96  MINERAL  LANDS  AND   TOWNSITES.  (Ch.  7 


LANDS  SUBJECT  TO  TOWNSITE  ENTRY. 

28.  Under  the  early  townsite  acts,  townsites  could  not  be  located  on 
mineral  lands;  but  under  the  act  of  1891  townsite  entries  may 
be  made  on  mineral  lands  by  incorporated  towns  and  cities. 
Townsite  patents  do  not,  however,  carry  title  to  mineral  veins 
which  at  the  time  of  entry  are  known  to  exist.  Minerals  not 
known  to  exist  at  the  time  of  townsite  entry  pass  to  the  town. 

While  there  are  other  methods  of  acquiring  townsites,  the  one 
set  forth  in  Rev.  St.  U.  S.  §  2387  (U.  S.  Comp.  St.  1901,  p.  1457),  and 
in  the  act  of  1891,1  above  quoted,  is  the  one  prevailing  in  the  mining 
region.  And  it  should  be  noted  that  the  act  of  1891  applies  expressly 
only  to  incorporated  towns  and  cities,  and  therefore  appears  not  to 
cover  townsite  entries  made  by  the  judge  of  the  county  court,  as  au- 
thorized by  section  2387,  Rev.  St.  U.  S.  Both  section  2387  and  the 
act  of  1891  must  be  read  and  considered  in  connection  with  the  whole 
general  land  law  system,  and  with  the  mining  law  as  a  special,  but 
integral,  part  ot  that  general  system.  As  was  inevitable,  the  mining 
regions  and  the  towns  have  been  closely  associated.  "Some  of  the 
most  valuable  mines  in  the  country,"  said  Mr.  Justice  Field,  "are 
within  the  limits  of  incorporated  cities,  which  have  grown  up  on  what 
was,  on  its  first  settlement,  part  of  the  public  domain;  and  many 
of  such  mines  were  located  and  patented  after  a  regular  municipal 
government  had  been  established.  Such  is  the  case  with  some  of  the 
famous  mines  of  Virginia  City,  in  Nevada.  Indeed,  the  discovery  of 
a  rich  mine  in  any  quarter  is  usually  followed  by  a  large  settlement  in 
its  immediate  neighborhod,  and  the  consequent  organization  of  some 
form  of  local  government  for  the  protection  of  its  members.  Explora- 
tion in  the  vicinity  for  other  mines  is  pushed  in  such  case  by  the  new- 
comers with  vigor,  and  is  often  rewarded  with  the  discovery  of  valuable 
claims."2  In  the  case  in  which  Mr.  Justice  Field  made  the  above 
statements,  the  United  States  Supreme  Court  held  that  a  miner  who 
had  located  a  mining  claim  within  the  limits  of  a  new  town  prior  to  a 
patent  for  a  townsite  had  a  valid  location  superior  to  any  claim  of  the 
town.  Prior  to  the  act  of  1891  it  is  hard  to  see  how  the  matter  could 
ever  have  been  in  doubt,  where  the  location  was  made  peaceably,  as 
was  true  in  the  case  mentioned,  and  the  actual  surface  ground  thus  ob- 
tained without  the  actual  occupation  of  the  rest  of  the  land  by  the 
townspeople  for  town  purposes  being  interfered  with.8 

1  26  Stat.  1101,  c.  561,  §  16  (U.  S.  Comp.  St.  1901,  p.  1459). 

2  STEEL  v.  ST.  LOUIS  SMELTING  &  REFINING  CO.,  106  U.  S.  447,  449, 
1  Sup.  Ct.  389,  27  L.  Ed.  226. 

»  See  Poire  v.  Wells,  6  Colo.  406. 


§  28)  LANDS   SUBJECT   TO   TOWNSITE   ENTEY.  9T 

Effect  of  Actual  Occupancy  of  Public  Land  for  Town  Purposes. 

Yet  with  reference  to  the  actual  occupation  by  the  townspeople  some 
very  perplexing  problems  have  arisen  under  the  act  of  1891.  Those 
problems  seem  to  grow  out  of  the  concurrence  of  two  doctrines :  (1) 
That  by  settling  on  land  not  known  at  the  time  to  be  mineral  the  towns- 
man initiates,  under  the  act  of  1891,  a  right  which,  taken  with  the 
rights  of  his  fellow  townsmen,  will  lead  on  to  a  townsite  patent,  and 
which,  when  so  initiated,  takes  the  occupied  surface ;  *  and  (2)  that 
the  mining  act  of  May  10,  1872  (17  Stat.  91,  c.  152),  and  the  revi- 
sion contemplate  no  mining  location  unless  a  surface  containing  a  lode 
can  be  located.  The  validity  of  the  second  doctrine  seems  not  to  be 
questioned,5  but  even  prior  to  the  act  of  1891  the  first  doctrine  was 
never  satisfactorily  discussed  by  the  courts.  Certainly  the  cases  of 
Steel  v.  St.  Louis  Smelting  &  Refining  Co.,8  Deffeback  v.  Hawke,7 
and  Davis  v.  Weibbold  8  left  the  question  in  a  far  from  satisfactory 
shape. 

The  problem  of  actual  occupancy  by  the  townspeople  is  discussed 
in  Bonner  v.  Meikle,9  a  case  arising  under  the  act  of  1891.  It  should 
be  noticed  that  Bonner  v.  Meikle  was  technically  an  adverse  suit,  un- 
der the  statute  in  reference  to  the  patenting  of  mining  claims,  and 
as  such  necessarily  litigated  priority  of  interest  in  the  surface.10  More- 
over, the  case  was  decided  in  1897,  after  the  act  of  1881,11  which  re- 
quired that  if,  in  an  adverse  suit,  it  appeared  that  neither  party  es- 
tablished title  to  the  ground  in  controversy,  judgment  should  be  entered 
accordingly.  As  the  court  rendered  judgment  for'  the  townspeople, 
even  th6ugh  no  townsite  patent  had  yet  been  applied  for  by  them,  the 
conclusion  is  irresistible  that  the  case  stands  for  the  proposition  that 
the  surface  belongs  to  the  townspeople,  even  though  the  town  remains 
inchoate.  The  court  said:  "The  citizens  of  a  town  have  as  much 
right  to  build  houses  upon  the  public  domain  in  which  to  live  as  others 
have  to  locate  mining  claims  upon  which  to  work.  One  purpose  is  as 

*  See  BONNER  v.  MEIKLE  (C.  C.)  82  Fed.  697. 

«TRAPHAGEN  v.  KIRK,  30  Mont  562,  77  Pac,  58;  Montana  Ore  Pur- 
chasing Co.  T.  Boston  Mining  Co.,  20  Mont  336,  51  Pac.  159 ;  State  v.  District 
Court,  25  Mont  504,  65  Pac.  1020.  See  Heill  v.  Martin  (Tex.  Civ.  App.)  70  S. 
W.  430 ;  Gleeson  v.  Martin  White  Min.  Co.,  13  Nev.  442. 

e  106  U.  S.  447,  1  Sup.  Ct.  389,  27  L.  Ed.  226. 

i  115  U.  S.  392,  6  Sup.  Ct  95,  29  L.  Ed.  423. 

•  139  U.  S.  507,  11  Sup.  Ct  628,  35  L.  Ed.  238. 

>  (C.  C.)  82  Fed.  697.    See,  also,  Young  v.  Goldsteen  (D.  C.)  97  Fed.  303i 

10  The  land  department,  however,  holds  that  an  adverse  suit  does  not  dispose 
of  the  matter.    See  Ryan  v.  Granite  Hill  Mining  &  Development  Co.,  29  Land. 
Dec.  Dep.  Int.  522;    Grand  Canyon  Ry.  Co.  v.  Cameron,  35  Land  Dec.  Dep. 
Int.  495. 

11  Act  March  3,  1881,  c.  140,  21  Stat.  505  (U.  S.  Comp.  St.  1901,  p.  1431). 

COST.  MIN.  L.-* 


98  MINERAL   LANDS   AND   TOWNSITES.  (Ch.  7 

necessary  as  the  other.  Both  are  entitled  to  the  equal  protection  of  the 
law.  Although  complainants  have  not  connected  themselves  with  any 
government  title,  nor  sought  in  any  manner  to  secure  such  title,  yet 
they  have  such  a  possessory  right  to  the  land  upon  which  their  build- 
ings have  been  erected  as  will  prevent  others,  not  having  any  title  from 
the  government,  from  entering  thereon  and  taking  their  property  from 
them  without  first  establishing  a  superior  right  thereto.  There  are 
many  cases  where  the  owners  of  mining  ground  valued  at  millions 
of  dollars  have  preferred  to  hold  the  same  under  'a  mere  possessory 
right,'  rather  than  to  take  any  steps  to  secure  a  patent  from  the  gov- 
ernment. Would  it  not  be  absurd  to  claim  that  in  such  cases  the  owners 
of  the  possessory  title  under  valid  mining  locations  were  not  entitled 
to  any  protection,  and  could  not  even  protest  against  the  application  of 
some  subsequent  locator,  for  a  patent  covering  a  portion  or  all  of 
their  ground,  because  they  had  never  taken  any  steps  to  secure  title 
to  their  property  from  the  United  States?"12  The  court  then  puts 
forward  the  idea  of  a  "townsite  location";  i.  e.,  the  idea  that  actual 
occupancy  for  business  purposes  is  equivalent  to  a  mining  location,  so 
far  as  to  prevent  a  subsequent  mining  location  of  the  same  ground 
from  being  made.13 

Bonner  v.  Meikle  would  seem  to  announce  sound  doctrine  with  ref- 
erence to  occupation  by  inhabitants  of  incorporated  towns  and  cities 
under  the  act  of  1891,  but  what  about  the  previous  acts?  As  to  them, 
despite  the  somewhat  ambiguous  dicta  to  be  found  in  the  decisions,  it 
seems  as  if  Mr.  Lindley's  "conclusion  that  the  Supreme  Court  of  the 
United  States  never  intended  to  establish  the  rule  that  prior  occupancy 
of  the  public  mineral  lands  for  trade  or  business  purposes  operated  to 
withdraw  such  lands  prior  to  the  issuance  of  a  townsite  patent  from 
appropriation  under  the  mining  laws,  provided,  always,  that  such  ap- 
propriation was  effected  by  peaceable  methods  and  without  resort  to 
force  or  violence,"  14  is  the  proper  one  to  draw.15 

Relation  of  Act  of  1891  to  Older  Acts. 

It  must  not  be  forgotten  that  the  theory  underlying  the  act  of  1891 
is  very  different  from  that  underlying  the  old  acts.  Under  the  old 
acts  title  to  mineral  lands  was  not  to  be  acquired  by  townsites,  and  if 
the  land  department,  in  its  investigation  of  the  character  of  the  land 

12  BONNER  v.  MEIKLE  (C.  C.)  82  Fed.  697,  699. 

is  Compare  White  v.  Whitcomb,  13  Idaho,  490,  90  Pac.  1080,  where  there  is 
a  dictum  that  lands  occupied  for  town  purposes  are  not  subject  to  homestead 
entry. 

i*  1  Lindley  on  Mines   (2d  Ed.)  §  170.     See  Martin  v.  Browner,  11  Cal.  12. 

is  Compare  case  of  railroad  grant.  NORTHERN  PAC.  R.  R.  CO.  v.  SMITH, 
171  U.  S.  260,  18  Sup.  Ct.  794,  43  L.  Ed.  157. 


§  28)  LANDS  SUBJECT  TO  TOWNSITE  ENTRY.  99 

sought  to  be  patented  as  a  townsite,  determined  that  the  whole  land 
was  mineral,  even  though  nobody  else  claimed  it,  it  could  not  patent  the 
land  as  a  townsite,  and  when  a  patent  issued  known  mineral  land  did 
not  pass  under  it.16  But  under  the  act  of  1891  it  is  expressly  provided 
that  townsite  entries  may  be  made  on  mineral  lands  by  incorporated 
towns  and  cities — the  usual  kind,  of  course,  to-day.  No  longer,  then, 
if  the  town  or  city  applying  for  a  townsite  patent  is  incorporated,  may 
the  land  department  refuse  the  townsite  patent  because  the  land  is  min- 
eral, though,  of  course,  previous  mining  locations  must  be  protected.17 
In  view  of  such  a  fundamental  difference  between  the  new  act  and  the 
old,  it  is  possible  and  proper  to  have  a  fundamental  difference  in  the 
effect  on  attempted  mining  locations  of  a  townsman's  occupancy  prior  to 
townsite  patent. 

In  still  another  respect  the  act  of  1891  has  changed  things.  Indi- 
rectly, if  not  directly,  it  changed  a  ruling  of  the  land  department.  That 
department  had  held  that  after  a  townsite  patent  issued  for  a  tract 
of  land  it  could  not  issue  a  patent  to  a  mining  claim  validly  located 
prior  to  the  issuance  of  the  townsite  patent,  but  that  the  mineral  claim- 
ant must  bring  a  suit  in  equity  to  set  aside  the  townsite  patent.18  Since 
the  act  of  1891,  however,  the  holding  has  been  reversed,  and  a  patent 
will  now  issue  for  mining  claims  to  which  the  townsite  patent  cannot 
apply.19  Whether  the  latest  ruling  of  the  land  department  is  right  or 
wrong  depends  upon  whether  a  previously  located  mining  claim  is 
technically  excepted  from  the  townsite  patent  by  virtue  of  the  town- 
site  acts  and  the  reservations  actually  inserted  in  the  townsite  patents 
pursuant  thereto.  That  it  is  such  a  technical  exception,  just  as  a 
lode  known  to  exist  in  a  placer  at  the  time  of  the  application  for  a 
patent  of  the  placer  is  an  exception,  would  seem  to  be  true,20  though  Mr. 
Lindley  intimates,  and  whatever  he  says  deserves  serious  consideration, 
that  it  is  not  an  exception.  "Logically,"  says  Mr.  Lindley,  "we  think 
the  mineral  claimant's  remedy  in  this  class  of  cases  is  in  equity  to  erect 

i«  Moyle  v.  Bullene,  7  Colo.  App.  308,  44  Pac.  69 ;  Brady's  Mortgagee  v.  Har- 
ris, 29  Land  Dec.  Dep.  Int.  89,  426. 

IT  Nome  &  Sinook  Co.  v.  Townsite  of  Nome,  34  Land  Dec.  Dep.  Int.  102,  276; 
Telluride  Additional  Townsite,  33  Land  Dec.  Dep.  Int.  542. 

is  See  Cameron  Lode,  13  Land  Dec.  Dep.  Int.  369;  Board  of  Education  v. 
Mansfield,  17  S.  D.  72,  95  N.  W.  286,  106  Am.  St.  Rep.  771. 

i»  NOME  &  SINOOK  CO.  v.  TOWNSITE  OF  NOME,  34  Land  Dec.  Dep.  Int. 
276 ;  Hulings  v.  Ward  Townsite,  29  Land  Dec.  Dep.  Int.  21. 

20  See  Silver  Bow  M.  &  M.  Co.  v.  Clark,  5  Mont.  378,  5  Pac.  570;  Talbort 
v.  King,  6  Mont.  76,  9  Pac.  434;  Butte  City  Smoke  House  Lode  Cases,  6  Mont 
397,  12  Pac.  858.  That  a  located  mill  site  is  also  excepted,  see  Hartman  v. 
Smith,  7  Mont.  19,  14  Pac.  648. 


100  MINERAL  LANDS  AND  TOWNSITES.  (Ch.  7 

a  trust  on  the  townsite  patent,  or,  perhaps,  an  application  to  the  land 
department,  to  institute  a  suit  to  vacate  the  patent  pro  tanto."  21 

The  California  Supreme  Court,  however,  would  seem  to  be  right  in 
deciding  that  a  valid  mining  location  existing  at  the  time  of  townsite  en- 
try is  excepted  from  the  townsite  patent,  even  though  it  was  not  known 
at  the  time  of  townsite  entry  that  the  claim  contained  minerals  of  suffi- 
cient value  to  justify  expenditure  for  extracting  them.22  If  there 
is  mineral  enough  to  sustain  the  location,  the  latter  is  excepted  from 
the  townsite  entry,  even  though  the  claim  cannot  be  worked  at  a  profit. 
It  is,  of  course,  true  under  all  the  acts  that  a  townsite  patent  vests  in  the 
town  absolutely  the  title  to  minerals  not  then  known  to  exist  in  the 
patented  area,  and  a  subsequent  discovery  of  minerals  will  not  permit 
third  persons  to  make  a  mining  location.23 

The  fact  that  minerals  underlie  the  streets  will  not  prevent  the  pass- 
ing of  the  minerals  to  the  town,  if  they  are  unknown  at  the  time  of 
patent.  They  will  pass  to  the  town,  and  then  will  stay  in  the  town,  if 
according  to  the  laws  of  the  state  where  the  town  is  situated  the  fee  to 
the  street  is  in  the  town,  or,  if  the  abutting  landowners  get  the  fee  to  the 
streets,  with  an  easement  for  highway  purposes  in  the  town,  will  pass 
from  the  town  to  the  abutting  landowners  at  the  time  the  latter  derive 
title  to  the  abutting  lands.24  This  is  clearly  the  intent  of  the  provision 
in  section  2387,  Rev.  St.  U.  S.,  that  the  execution  of  the  townsite  patent 
trust  as  to  the  disposal  of  lots  and  their  proceeds  by  the  proper  au- 
thorities shall  be  "conducted  under  such  regulations  as  may  be  prescrib- 
ed by  the  legislative  authority  of  the  state  or  territory  in  which  the 
same  may  be  situated." 

21 1  Lindley  on  Mines  (2d  Ed.)  p.  316,  ft  177. 

22  Callahan  v.  James,  141  Cal.  291,  74  Pac.  853.    See  Cascaden  v.  Bartolisr 
146  Fed.  789,  77  C.  C.  A.  496.    But  see  Horsky  v.  Moran,  21  Mont.  345,  53  Pac. 
1064 ;   Harkrader  v.  Goldstein,  31  Land  Dec.  Dep.  Int.  87. 

23  Bonner  v.  Meikle  (O.  C.)  82  Fed.  697;   McCormick  v.  Sutton,  97  Cal.  373; 
32  Pac.  444.    See  Davis  v.  Weibbold,  139  U.  S.  507,  11  Sup.  Ot.  628,  35  L.  Ed. 
238;   Lamed  v.  Jenkins,  113  Fed.  634,  51  C.  O.  A.  344. 

24  Where  the  grantor  of  lands  to  a  city  reserved  the  minerals  under  the  sur- 
face of  the  street,  and  then  granted  to  a  third  person  a  lot  which    abutted  on 
the  street,  the  grantee  was  held  to  get  the  minerals  under  the  half  of  the  street 
immediately  in  front  of  his  lot.    Tousley  v.  Galena  Mining  &  Smelting  Co.,  24 
Kan.  328 ;   Snoddy  v.  Bolen,  122  Mo.  479,  24  S.  W.  142,  25  S.  W.  932,  24  L.  R. 
A.  507 ;   Snoddy  v.  Clark,  122  Mo.  479,  25  S.  W.  935.    Where  land  is  dedicated 
to  the  public  for  a  street  in  Colorado,  the  statute  gives  the  city  the  fee  to  the 
street,  and  not  to  the  land,  and  hence  the  dedicator  still  has  the  right  to  ex- 
tract minerals  beneath  the  street,  so  far  as  he  does  not  interfere  with  street 
uses.    City  of  Leadville  v.  Bohn  Mining  Co.,  37  Colo.  248,  86  Pac.  1038.    This 
is  not  true,  however,  in  &  state  where  the  title  to  the  land  passes  by  dedica- 
tion.   Union  Coal  Co.  v.  La  Salle,  136  111.  119,  26  N.  E.  506,  12  L.  R.  A.  326; 


§29)  LOCATION   OP   KNOWN   VEINS- r#  $G:WXSITE&  101 


THE  LOCATION  OF  KNOWN  VEINS  IN  TOWNSITES. 

29.  Known  veins  can  be  located  in  the  town  limits  prior  to  the  town- 
site  patent,  if  the  location  is  made  peaceably,  and  after  town- 
site  patent  issues  previous  mining  locations  may  be  patented. 
Whether  "known  veins"  in  patented  townsites  may  be  located 
—query? 

Known  veins  are  not  even  reserved  under  the  act  of  1891,  unless 
they  are  of  gold,  silver,  cinnabar,  copper,  or  lead,  or  are  validly  locat- 
ed prior  to  the  townsite  entry.  "Known  mines"  under  the  townsite 
reservations,  prior  to  the  act  of  1891,  meant  that,  to  be  excepted  from 
the  townsite  patent,  "it  is  not  sufficient  that  the  lands  do  in  fact  con- 
tain minerals,  or  even  valuable  minerals,  when  the  townsite  patent  takes 
effect,  but  that  they  must  at  that  time  be  known  to  contain  minerals 
of  such  extent  and  value  as  to  justify  expenditures  for  the  purpose 
of  extracting  them;  and,  if  the  lands  are  not  known  at  that  time  to 
"be  so  valuable  for  mining  purposes,  the  fact  that  they  have  once  been 
valuable,  or  are  afterwards  discovered  to  be  still  valuable,  for  such  pur- 
poses, does  not  defeat  or  impair  the  title  of  persons  claiming  under  the 
townsite  patent."  25  Known  veins  of  gold,  silver,  cinnabar,  copper,  or 
lead,  under  the  act  of  1891,  must  doubtless  accord  with  the  foregoing 
test.26  If  they  do,  then,  as  was  the  case  with  known  mines  under  the 
earlier  acts,  they  are  excepted  from  the  townsite  patent  as  completely 
as  if  they  were  actually  located  at  the  time.27 

The  only  question  about  known  veins  under  the  act  of  1891  that 
remains,  and  it  does  not  seem  to  be  as  simple  as  it  might  be,  is  whether 
such  known  lodes  can  be  located  after  the  townsite  patent.  The  ques- 
tion seems  to  be  much  the  same  as  that  in  regard  to  Mexican  land 
grants  covered  by  the  act  of  March  3,  1891.  Indeed,  the  townsite  act 
and  the  Mexican  land  grant  act,  both  approved  March  3,  1891,  show  a 
common  design  to  give  the  surface  to  the  patentee  and  reserve  the  min- 
eral. In  the  case  of  Mexican  land  grants  Congress  seems  to  reserve 
unknown  minerals,  but  in  the  case  of  townsites  only  known  ones.  Un- 
der the  Mexican  land  grant  act  of  1891,  no  location  of  minerals  can  be 

City  of  Des  Moines  v.  Hall,  24  Iowa,  234;  Trustees  of  Hawesville  v.  Hawes' 
Heirs,  6  Bush  (Ky.)  232. 

2  s  DOWER  v.  RICHARDS,  151  U.  S.  658,  663,  14  Sup.  Ct.  452,  38  L.  Ed. 
305.  See  Lamed  v.  Jenkins,  113  Fed.  634,  51  C.  C.  A.  344.  But  see  Callahan 
v.  James,  supra. 

se  See  Brophy  v.  O'Hare,  34  Land  Dec.  Dep.  Int.  596. 

27  See  Callahan  v.  James,  141  Cal.  291,  74  Pac.  853;  Hulings  v.  Ward  Town- 
site,  29  Land  Dec.  Dep.  Int.  21 ;  Lalande  v.  Townsite  of  Saltese,  32  Land  Dec. 
Dep.  Int.  211. 


102  MINERAL  LANDS  AND   TOWNSITES.  (Ch.  7 

made  .without  the  l  surface  owner's  consent  until  Congress  shall  act. 
What  about  the  townsite  case  ?  Mr.  Lindley  says  the  case  is  like  that 
of  a  known  lode  in  a  placer;  but,  unfortunately,  there  is  this  marked 
difference:  That  in  the  case  of  a  known  lode  in  a  placer  Congress 
has  reserved  a  surface  strip  of  at  least  50  feet,  25  feet  of  surface 
on  each  side  of  the  vein  or  lode,28  but  in  the  case  of  a  town 
site  no  surface  is  reserved.  The  question  then  arises :  Can  a  lode  be 
located  without  a  surface  to  include  it?  The  Montana  Supreme  Court 
has  several  times  asserted  that  it  cannot,29  and  the  conclusion  of  that 
court  seems  to  be  sound.  Section  2319,  Rev.  St.  U.  S.  (U.  S.'Comp.. 
St.  1901,  p.  1424),  providing  for  the  location  of  mining  claims  "re- 
quires the  location  of  surface  ground,  including  the  minerals  sought 
to  be  obtained."  80  It  has  been  decided  in  at  least  one  case  that  un- 
der the  townsite  laws  prior  to  the  act  of  1891  known  mineral  land  in  a 
patented  townsite  cannot  be  located,*  and  the  provision  in  the  act  of 
1891  forbidding  entry  where  the  owner  or  occupier  of  the  surface 
ground  on  a  patented  townsite  shall  have  had  possession  of  the  same 
before  the  inception  of  the  title  of  the  mineral  vein  applicant  would 
seem  to  show  that  a  location  was  not  to  be  permitted  in  such  case. 

As  has  several  times  been  noticed,  the  provisions  of  Rev.  St.  U.  S. 
§  2392  (U.  S.  Comp.  St.  1901,  p.  1459),  reserved  from  the  townsite 
patent  "any  valid  mining  claim  or  possession  held  under  existing  laws," 
and  the  act  of  1891  has  repeated  the  reservation.  That  reserves  only 
locations  that  are  not  void  for  uncertainty.31  Such  reserved  locations 
are  so  fully  protected  that  they  may  not  even  protest  against  the 
townsite  patent  successfully  as  they  cannot  be  prejudiced  by  its  issu- 
ance.32 

2  a  Rev.  St.  U.  S.  §  2333  (U.  S.  Comp.  St.  1901,  p.  1433). 

29  TRAPHAGEN  v.  KIRK,  30  Mont  562,  77  Pac.  58;  Montana  Ore  Purchas- 
ing Co.  v.  Boston  &  M.  Consol.  Copper  &  Silver  Min.  Co.,  20  Mont.  336,  51  Pac. 
159 ;  State  v.  District  Court,  25  Mont.  504,  65  Pac.  1020.  See  Hill  v.  Martin 
(Tex.  Civ.  App.)  70  S.  W.  430 ;  Gleeson  v.  Martin  White  Min.  Co.,  13  Nev.  442. 

soTraphagen  v.  Kirk,  30  Mont.  562,  573,  77  Pac.  58,  60. 

*  Board  of  Education  v.  Mansfield,  17  S.  D.  72,  95  N.  W.  286,  106  Am.  St. 
Rep.  771 ;  Carter  v.  Thompson  (C.  C.)  65  Fed.  329.  See  Duffy  Quartz  Mine,  18 
Land.  Dec.  Dep.  Int.  259.  For  the  rule  applicable  to  certain  townsites  spe- 
cially reserved  by  act  of  Congress,  see  Instructions,  31  Land  Dec.  Dep.  Int.  154. 

si  TOMBSTONE  TOWNSITE  CASES,  2  Ariz.  272,  15  Pac.  26;  Blackmore 
v.  Reilly,  2  Ariz.  442,  17  Pac.  72. 

32  Lalande  v.  Townsite  of  Saltese,  32  Land  Dec.  Dep.  Int.  211. 


§  30)  DEFINITIONS   OF   PRACTICAL  MINING   TERMS.  103 

CHAPTER  VIII. 
DEFINITIONS  OF  PRACTICAL  MINING  TERMS. 

30.  Lode  Mining  Terms. 

(a)  Terms  Relating  to  the  Working  of  a  Lode  Claim. 

(b)  Terms  Relating  to  the  Vein  or  Lode. 

(c)  Terms  Relating  to  the  Ore  and  Its  Treatment. 

31.  Placer  Mining  Terms. 

A  student  of  American  mining  law  should  acquaint  himself  at  the 
outset  with  various  technical  mining  terms  used  by  those  engaged 
in  mining  the  precious  metals  and  in  treating  those  metals  after  their 
extraction.  It  is  well  to  consider  first  lode  mining  terms  and  then 
placer  mining  terms. 

PRACTICAL  MINING  TERMS. 

3O.  LODE  MINING  TERMS.— (a)  Terms  relating  to  the  working  of  a 
lode  claim:  Adit,  back  sloping,  bottom,  breast,  chute,  crib- 
bing, cross  cut,  down  cast,  drift,  face,  floor,  heading,  incline 
drift,  lagging,  lateral  drift,  level,  lift,  man  hole,  mill  hole, 
open  cnt,  overhand  stoping,  raise,  roof,  set  work,  shaft,  stop- 
ing,  stulls,  sump,  timber,  tunnel,  nnderhand  stoping,  np  cast, 
winze. 

Lode  mining  starts  usually  with  a  "shaft,"  a  perpendicular  ex- 
cavation similar  to  a  well,  sunk  either  on  a  vein  or  to  reach  it,  or 
with  a  "tunnel" — a  horizontal  excavation  like  a  railroad  tunnel — run 
into  the  mountain  either  on  the  vein,1  or  to  reach  it.  If  the  tunnel 
is  driven  into  the  "country  rock" — i.  e.,  the  ordinary  solid  part  of  the 
mountain — in  order  to  cut  across  the  course  of  a  vein,  it  is  called 
appropriately  a  "cross  cut."  2 

1  This  kind  of  tunnel  Messrs.  Morrison  and  De  Soto  seemingly  would  call 
an  adit,  and  not  a  tunnel.     Morrison's  Mining  Rights  (13th  Ed.)  43.     There 
Is  no  doubt  that  such  a  tunnel,  run  to  do  the  discovery  work,  is  an  adit,  with- 
in a  statute  allowing  an  adit  to  take  the  place  of  a  discovery  shaft     Gray 
v.  Truby,  6  Colo.  278.    But  it  seems  to  be  none  the  less  a  tunnel. 

2  Messrs.  Morrison  and  De  Soto  recognize  no  tunnel  except  a  cross  cut, 
or   what  would  be  a   cross  cut  if   it  were  not  so   long.     They   say:    "The 
words  'cross  cut'  and  'tunnel'  are  identical  terms,  except  that  the  former  is 
usually  applied  to  short  workings  and  the  latter  to  those  of  greater  length." 
Morrison's  Mining  Rights  (13th   Ed.)  43.     Of  course,  it  has  to  be  borne  in 
mind  that  they  are  speaking  there  of  statutes  allowing  discovery  work  by 
an  open  cut,  adit,  cross  cut,  or  tunnel. 


104  DEFINITIONS   OP   PRACTICAL   MINING    TERMS.  (Ch.  8 

Sometimes  the  work  on  a  lode  begins  with  an  "adit,"  or  an  "open 
cut."  Before  the  case  of  Electric  Magnetic  M.  &  D.  Co.  v.  Van 
Auken,3  it  was  supposed  that  an  adit  had  to  be,  in  part,  at  least,  under 
cover;  but  that  case  says  that  it  does  not.  An  open  cut,  of  course, 
is  not  under  cover,  and  accordingly,  as  Messrs.  Morrison  and  De 
Soto  point  out,  the  effect  of  the  above  decision  "is  to  confuse  all 
the  distinctions  between  an  adit  and  an  open  cut."  4 

Where  a  shaft  is  sunk,  the  miners  at  regular  intervals  in  their  de- 
scent make  horizontal  excavations  on  the  vein,  called  "levels"  or 
"lateral  drifts."  These  are  known,  according  to  depth  underground, 
as  "the  50-foot  level,"  the  "100-foot  level,"  B  etc.  The  space  between 
two  levels  is  known  as  a  "lift,"  while  a  shaft,  other  than  the  main 
one,  sunk  from  a  level,  is  called  a  "winze."  The  "breast,"  "face," 
or  "heading"  of  a  drift  or  tunnel  is  the  end  where  the  work  of  ex- 
cavating is  going  on  or  is  to  be  continued.  A  ventilating  shaft  for 
the  air  to  ascend  through  is  called  an  "up  cast,"  and  one  for  it  to 
descend  through  is  called  a  "down  cast."  When  a  shaft  or  winze  is 
made  by  working  from  below  up,  it  is  called  a  "raise."  A  "man  hole" 
is  an  opening  of  the  right  size  to  permit  a  man  to  get  from  one  place 
of  working  to  another.  Where  a  shaft  is  sunk  a  little  below  a  level, 
to  form  a  cavity  for  the  collection  of  water  found  in  the  level,  it  is 
called  a  "sump."  An  "incline  drift"  is  one  run  at  an  incline  for  drain- 
age purposes.  , 

Between  a  level  and  the  surface,  or  between  levels,  the  ore  is  taken 
out  by  "stoping" ;  that  is,  either  by  digging  and  blasting  it  up  from 
the  "bottom,"  "floor,"  or  "sole,"  of  the  drift,  or  by  digging  or  blast- 
ing it  down  from  the  "roof,"  "top,"  or  "back"  of  the  level,  and  fol- 
lowing that  roof  up  by  the  aid  of  timbering  and  waste  rock.  The 
first  kind  is  "underhand  stoping,"  and  the  second  "overhand  or  back 
stoping."  Timbers  replace  the  back  or  roof  of  the  level  in  overhand 
stoping,  and  thereafter  the  roof  or  back  being  stoped  is  known  as 
the  "roof  of  the  stope."  Passages  left  in  the  stope  for  throwing  down 
rock  or  ore  are  known  as  "mill  holes." 

It  is  often  necessary  to  "timber"  a  mine.  That  consists  in  putting 
poles  on  the  four  sides  of  a  shaft  or  winze  as  a  lining  to  keep  rock 
and  dirt  from  caving  in  on  the  workers  below,  in  putting  poles  on 
the  sides  and  roofs  of  tunnels  for  the  same  purpose,  in  lining  mill 
holes  so  that  ore  will  go  down  readily,  etc.  "Cribbing"  is  the  name 

39  Colo.  204,  11  Pac.  80. 

*  Morrison's  Mining  Rights  (13th  Ed.)  43. 

s  It  seems  that  everything  below  the  50-foot  level  and  above  the  100-foot 
level  is,  for  stoping  purposes,  called  the  "100-foot  leveL"  Cambers  v. 
Lowry,  21  Mont.  478,  54  Pac.  816. 


§  30)  PRACTICAL  MINING  TERMS.  105 

given  to  the  light  timber  used  to  line  shafts,  etc.  The  small  poles  are 
also  known  as  "lagging."  The  extra  heavy  timber,  such  as^  those  at 
the  foot  of  the  stope,  which  often  bear  a  great  weight  of  debris,  are 
called  "stulls."  The  supporting  timbers  or  stulls  are  also  known  as 
"set  work." 


(b)  Terms  relating  to  the  vein  or  lode:  Apex,  blossom,  blow  out, 
bonanza,  brecciated  vein,  cap,  chimney,  dip,  faulting,  feeder, 
float,  foot  wall,  gangue,  gouge,  hanging  wall,  horse,  lode,  out 
crop,  pay  streak,  pinch,  pocket,  prospecting,  selvage,  slicken- 
siding,  slipping,  spur,  strike,  veins,  vug,  wall. 

Now  a  word  about  the  vein  or  lode.  We  shall  define  "vein"  or 
"lode"  later  in  considering  what  the  mining  law  recognizes  as  a 
vein;-  but  for  the  present  we  may  accept  the  following  very  liberal 
definition  of  a  geologist:  "Veins  are  collections  of  mineral  matter, 
often  closely  related  to,  but  differing  more  or  less  in  character  from, 
the  inclosing  country  rock,  usually  in  fissures  formed  in  those  rocks 
after  the  rocks  had  more  or  less  consolidated."  e 

Before  a  vein  is  found,  it  often  happens  that  a  miner  in  "pros- 
pecting"— that  is,  looking  for  the  vein  7 — comes  upon  pieces  of  vein 
matter  lying  around,  and  these  are  known  as  "float."  "A  vein, 
outcropping  on  the  surface,  becomes  oxidized  and  crumbles  by  ac- 
tion of  the  atmosphere,  rain,  etc.  Pieces  break  off  and  fall  down  hill. 
Some  of  this  float  is  barren  quartz  or  country  rock,  and  some  may  be 
mineralized."  8  By  the  "outcrop"  of  a  vein  is  meant  the  part  show- 
ing on  the  surface.  If  that  outcrop  is  decomposed,  it  is  known  as 
"blossom."  9  A  spreading  outcrop  is  known  as  a  "blow  out."  The 
"apex"  is  the  top  of  the  lode,  whether  that  top  outcrops,  or  whether 
it  is  overlaid.10  The  "dip"  of  a  vein  is  its  departure  from  the  hori- 
zontal or  the  perpendicular.  If  the  vein  dips,  its  lower  wall  is  its 
"foot  wall"  or  its  "floor,"  and  its  upper  wall  is  its  "hanging  wall" 

«  Lakes'  Prospecting  for  Gold  and  Silver  in  North  America  (3d  Ed.)  86. 

t  The  word  "prospecting"  also  means  opening  up  a  located  vein  to  see  if 
ore  that  will  pay  to  work  can  be  found. 

s  Lakes'  Prospecting  for  Gold  and  Silver  (3d  Ed.)  p.  17.  Float  found  on 
the  unlocated  public  domain  belongs  to  the  finder.  Burns  v.  Clark,  133  Cal. 
634,  66  Pac.  12,  85  Am.  St.  Rep.  233 ;  Burns  v.  Schoenfield,  1  Cal.  App.  121, 
81  Pac.  713.  See  Robertson  v.  Smith,  1  Mont.  410;  Sullivan  v.  Schultz,  22 
Mont.  541,  57  Pac.  279.  But  see  Brown  v.  Quartz  Mining  Co.,  15  Cal.  152,  76 
Am.  Dec.  468. 

»  Lakes'  Prospecting  for  Gold  and  Silver  (3d  Ed.)  p.  90. 

10  A  more  detailed  definition  of  "apex"  is  given  in  the  next  chapter. 


106 


DEFINITIONS   OF   PKACTICAL  MINING   TERMS. 


(Ch.  8 


FIGURE  No.  2. 


or  its  "roof."  J1  The  vein  matter  proper  is  called  the  "gangue."  12 
"A  layer  or  sheet  of  clay,  called  'gouge'  or  'selvage/  often  lines  one 
or  both  walls  of  a  vein  between  the  country  rock  and  the  gangue,  or  vein 
proper.  It  is  derived  from  the  elements  of  the  adjacent  country  rock, 
decomposed  by  water,  and  sometimes  by  the  friction  of  the  walls 

of  the  fissure  against  one  anoth- 
er, or  against  the  vein  matter, 
in  the  process  of  'slipping'  or 
'faulting/  which  is  often  shown 
by  its  being  smoothed,  'slick- 
ensided/  polished,  or  grooved. 
Gouge  often  contains  some  rich 
decomposed  mineral  in  it,  such 
as  sulphurets  of  silver.  *  *  * 
Gouge  is  sometimes  useful  in 


defining  the  limit  of  the  vein 
between  walls,  thus  preventing 
unprofitable  exploration  into 

the    'country/      It    is    also    a 

Showing  how  cross-cut  tunnels  and  guide  '  for  following  down  a 
shafts  may  miss  veins  by  change  of  dip  vem  when  mineral  and  srangoie 
or  faulting."  '  .  ,  fj  . 

may  be  wanting  or  obscure. 

A  "brecciated  vein"  is  one  containing  small,  irregular  pieces  of 
country  rock  scattered  through  it.  A  vein  with  a  "horse"  in  it  is 
one  having  a  very  large  piece  or  mass  of  country  rock  in  it.15  A 
"spur"  or  "feeder"  of  a  vein  is  a  small  branch  or  offshoot  of  the 
vein.  A  "pinch"  or  "cap"  in  a  vein  is  a  place  where  the  walls  con- 
tract so  as  to  leave  only  a  very  thin  vein,  or  none.  A  "pocket"  is 
an  enlargement  of  the  pay  ore  in  a  vein.  A  "chimney"  or  "chute" 
of  ore  is  a  perpendicular  enlargement  of  the  ore  body;  that  is,  it  is 


11  "It  is  not  uncommon  for  a  fissure  vein  to  have  but  one  clearly  defined 
wall ;   the  other,  if  it  exists,  being  obscured  or  changed  by  mineral  solutions. 
Sometimes  two  cracks  or  fissures  occur  parallel  to  each  other,  and  the  inter- 
vening country  rock  has  been  altered  and  mineralized  into  a  vein.     It  is 
probable  that  in  this  way  many  wide  veins  were  formed."     Lakes'  Prospect- 
ing for  Gold  and  Silver  (3d  Ed.)  88. 

12  "Gangue   minerals"    is    a   term   sometimes    applied   to    the    nonmetalljc 
minerals,  "which  carry  no  values  worth  extracting";    the  word  "ore"  being 
used  in  contrast  to  cover  "those  portions  of  the  ore  body  of  which   the 
metallic  minerals  form  a  sufficiently  large  proportion  to  make  their  extraction 
profitable."     See  Prof.  Heinrich  Ries'  Economic  Geology  of  the  U.  S.  223. 

is  Lakes'  Prospecting  for  Gold  and  Silver  (3d  Ed.)  p.  87. 

i*  From  Lakes'  Prospecting  for  Gold  and  Silver  (3d  Ed.)  p.  105. 

IB  See  Book  v.  Justice  Min.  Co.  (C.  C.)  58  Fed.  106,  126. 


§  30)  PRACTICAL  MINING   TERMS.  107 

a  particular  kind  of  pocket  of  ore.  A  "bonanza"  is  a  large  body  of 
paying  ore.  The  "pay  streak"  is  the  part  of  the  vein  containing  the 
valuable  or  pay  ore.  A  "vug"  is  a  cavity  in  the  ore  body. 

(c)  Terms  relating  to  the  ore  and  its  treatment:  Amalgam,  assay, 
base  ores,  clean-up,  concentrates,  dump,  free  milling  ores, 
leaching,  mill  run,  refractory  ores,  retort,  roasting,  smelting, 
sorting,  tailings. 

When  the  ore  is  mined,  it  is  usually  "sorted,"  either  underground 
or  after  it  reaches  the  surface;  i.  e.,  the  valuable  part  of  the  rock 
mined  is  separated  from  the  part  that  is  to  be  thrown  on  the  "dump," 
or  place  of  deposit  for  waste  rock.  The  word  "dump"  is  also  used  to 
mean  the  piled-up  rock  which  has  been  thrown  away.  The  ore  hav- 
ing been  sorted,  it  is  ready  for  "treatment,"  which  varies  with  its 
needs.  "Those  ores  whose  precious  metal  contents  can  be  readily 
extracted  after  crushing,16  by  amalgamation  with  quicksilver,  are 
termed  'free  milling  ores/  This  includes  the  ores  which  carry  na- 
tive gold  or  silver,  and  often  represent  the  oxidized  portions  of  ore 
bodies.  Others,  containing  the  gold  as  telluride,  or  containing  sul- 
phides of  these  metals,  are  known  as  'refractory  ores/  17  and  require 
more  complex  treatment.  These,  after  mining,  are  sent  direct  to  the 
smelter,18  if  sufficiently  rich ;  but,  if  not,  they  are  often  crushed  and 
mechanically  concentrated.  The  smelting  process  is  also  used  for 
mixed  ores;  the  latter  being  often  smelted  primarily  for  their  lead 
or  copper  contents,  from  which  the  gold  or  silver  is  then  separated. 

*  *     *     Low-grade  ores  may  first  be  'roasted/  and  the  gold  then 
extracted    by    'leaching'    with    cyanide    or    chlorine    solutions.      The 
introduction   of   the   cyanide   and   chlorination   processes,   which   are 
applied  chiefly  to  gold  ores,  has  permitted  the  working  of  many  de- 
posits formerly  looked  upon  as  worthless,  and  in  some  regions  even 
the  mine  dumps  are  now  being  worked  over  for  their  gold  contents. 

*  *     *     The  value  of  ore  and  bullion  is  determined  by  a  'sample 

le  The  crushing  is  either  in  stamp  mills  or  in  rotary  mills.  In  both  kinds 
of  mills,  after  the  ore  is  crushed,  the  mashed  matter  is  washed  over  copper 
plates  covered  with  quicksilver,  so  as  to  catch  the  gold  and  silver.  Every 
once  in  a  while  there  is  a  clean-up;  the  amalgam — 1.  e.,  the  quicksilver,  with 
ithe  gold  and  silver  it  has  caught  up — being  scraped  off  the  plates.  The  gold 
and  silver  are  then  separated  from  the  quicksilver  in  a  "retort"  and  sent  to 
a  branch  of  the  United  States  mint  to  be  refined.  The  crushed  rock  not  taken 
up  by  the  plates  becomes  either  complete  waste,  known  as  "tailings,"  or  be- 
comes "concentrates,"  which  are  waste  so  far  as  this  particular  mill  is  con- 
cerned, but  may  pay  to  ship  to  a  smelter. 

if  Also  known  as  "base  ores." 

*•  "Smelting"  is  a  melting  process. 


108  DEFINITIONS   OF  PRACTICAL  MINING   TERMS.  (Ch.  8 

assay/  19  and  the  smelter,  in  paying  the  miner  for  his  ore,  allows  for 
gold  in  excess  of  $1  per  ton  of  ore  at  the  coinage  rate  of  $20.67  per 
ounce,  and  for  silver  at  the  New  Yprk  market  price,  deducting 
5  per  cent,  in  each  case  for  smelter  losses.20  Lead  and  copper  are 
paid  for  in  the  same  manner,  as  are  also  iron  and  manganese,  if 
there  is  a  sufficient  quantity  present.  No  allowance  is,  however, 
made  for  zinc,  and,  in  fact,  a  deduction  is  made  if  it  exceeds  a  certain 
percent."21 

PLACER  MINING  TERMS. 

31.  Bar  diggings,  booming,  clean-np,  cradle,  deep  placers,  dredging, 
drift  mining,  dry  blowing,  hydraulic  mining,  nuggets,  panning, 
riffles,  rocker,  sluice,  tailings. 

The  early  California  placer  mining  took  place  in  river  bars  of  sand 
and  gravel,  known  as  "bar  diggings,"  or  simply  as  "diggings."  The 
gold  was  gotten  out  by  "panning";  i.  e.,  by  so  manipulating  an  iron 
"prospecting  pan,"  or  basin,  filled  with  gravel  and  water,  that  the  sand 
would  wash  away,  leaving  the  gold  in  the  pan,  or  by  the  use  of  a 
"rocker,"  or  "cradle,"  a  short  wooden  trough  used  in  substantially 
the  same  way.  "Hydraulic  mining,"  by  which  gold-bearing  gravel 
is  washed  from  its  resting  place  by  water  under  heavy  pressure  and 

is  An  "assay"  is  the  determination  of  the  value  of  a  particular  mineral  in  a 
selected  quantity  of  ore.  A  "sample  assay"  is  one  made  from  a  portion  of  the 
ore,  carefully  selected  to  make  it  representative  of  the  whole  lot.  For  a  discus- 
sion, where  assays  were  made  from  mine  specimens,  from  car  samples,  and 
from  mill  or  battery  samples,  see  Fox  v.  Hale  &  Norcross  Silver  Min.  Co.,  108 
Cal.  360,  392  ff,  41  Pac.  308,  314  ff.  See,  also,  chapter  XXIV,  §  134,  infra. 

A  "mill  run"  is  where  a  number  of  tons  of  supposedly  representative  ore 
are  run  through  a  mill  to  serve  as  an  indication  of  the  values  of  the  ore 
in  the  mining  claim.  It  is,  of  course,  a  far  better 'test  of  the  worth  of  the  ore 
than  an  assay  is,  since  an  assay  tests  the  value  of  only  a  very  small  piece  of 
ore,  and  so  is  much  less  likely  to  be  representative  of  the  lode. 

20  What  smelters  pay  for  gold  in  ore  varies  slightly  from  time  to  time  and 
in  different  localities.    It  depends  somewhat,  also,  upon  the  amount  of  gold  in 
the  ore.    The  general  rule  in  Colorado  at  present  seems  to  be  to  pay  for  gold 
in  small  amounts  of  not  less  than  B/ioo  of  an  ounce  per  ton  on  the  basis  of 
$19  an  ounce;   but  in  some  districts  payment  is  made  when  the  assay  shows 
3/ioo  of  an  ounce  of  gold  per  ton.    In  some  districts,  also,  payment  is  made 
at  the  rate  of  $20  an  ounce.     The  words  "in  excess  of  $1  per  ton''  in  the  text 
seem  to  be  erroneous. 

21  Prof.  Heinrich  Ries'  Economic  Geology  of  the  U.  S.  329-330. 

It  is  the  lead  smelters  that  do  not  pay  for  zinc.  That  is  because  zinc  in 
excess  of  6*4  per  cent,  is  injurious  to  the  treatment  of  such  ores  in  lead 
smelters.  Since  many  ores  carry  less  than  6%  per  cent,  of  zinc,  the  lead 
smelters  in  Colorado  have  fixed  10  per  cent,  as  the  ordinary  amount  of  zinc 
in  ores  for  which  no  penalty  will  be  exacted.  It  is  found  that  the  ores  hav- 


§  31)  PLACER   MINING   TERMS.  109 

forced  into  sluices,  where  the  gold's  specific  gravity  separates  it  from 
the  gravel,22  came  later;  and  so  did  "drift  mining,"  "dredging,"  and 
"dry  blowing." 

The  cause  of  gold  in  the  gravel  and  the  methods  of  placer  mining 
are  well  described  by  Professor  Ries  as  follows : 

"These  auriferous  gravels  represent  the  more  resistant  products 
of  weathering,  such  as  quartz  and  native  gold,  which  have  been 
washed  down  from  the  hills  on  whose  slopes  the  gold-bearing  quartz 
veins  outcrop,  and  were  too  coarse  or  heavy  to  be  carried  any  dis- 
tance, unless  the.  grade  was  steep.  They  have  consequently  settled 
down  in  the  stream  channels;  the  gold,  on  account  of  its  higher 
gravity,  collecting  usually  in  the  lower  part  of  the  gravel  deposit. 
*  *  *  The  gold  occurs  in  the  gravels  in  the  form  of  nuggets, 
flakes,  or  dust-like  grains ;  the  last  being  usually  hard  to  catch.  The 
'nuggets'  represent  the  largest  pieces.  *  *  *  During  the  early 
days  of  gold  mining  in  California  the  gravels  at  lower  levels  and  in 
the  valley  bottoms  were  worked;  but,  as  these  became  exhausted, 
those  farther  up  the  slopes  or  hills  were  sought.  In  the  earlier  oper- 
ations the  gravels  were  washed  entirely  by  hand,  either  with  a  pan 
or  rocker,  and  this  plan  is  even  now  followed  by  small  miners  and  pros- 
pectors; but  mining  on  a  larger  scale  is  carried  on  by  one  of  three 
methods,  viz.,  drift  mining,  hydraulic  mining,  and  dredging. 

"  'Drift  mining'  is  employed  in  the  case  of  gravel  deposits  covered 
by  a  lava  cap; 23  a  tunnel  being  run  into  the  paying  portion  of  the  bed 
and  the  auriferous  gravel  carried  out  and  washed.  In  'hydraulic  min- 
ing' a  stream  is  directed  against  the  bank  of  gravel,  and  the  whole 
washed  down  into  a  rock  ditch  lined  with  tree  sections,  or  into  a  wood- 
en trough,24  with  cross-pieces  or  riffles  25  on  the  bottom.  The  gold, 
being  heavy,  settles  quickly,  and  is  caught  in  the  troughs  or  ditches, 
while  other  materials  are  carried  off  and  discharged  into  some  neigh- 
boring stream.  Mercury  is  sometimes  put  behind  the  riffles  to  aid 
in  catching  the  gold.26  *  *  *  Owing  to  the  great  amount  of 

ing  10  per  cent,  of  zinc  or  less  in  them  average  less  than  Gy2  per  cent,  of 
zinc.  While  the  lead  smelters  do  not  pay  for  zinc,  there  are  zinc  smelters 
that  pay  for  zinc  and  something  for  lead.  The  writer  is  indebted  for  the 
information  in  this  note  and  in  the  preceding  one  to  the  American  Smelting  & 
Refining  Company. 

22  "Hydraulic  mining  is  mining  by  means  of  the  application  of  water,  under 
pressure,  through  a  nozzle  against  a  natural  bank."    Civ.  Code  Cal.  §  1425. 

23  These  are  the  "deep  placers,"  described  when  we  come  to  define  placers. 
2*  Called  a  "sluice"  or  "sluice  box." 

2  B  Riffle  blocks. 

26  in  placer  mining,  too,  there  is  a  "clean-up."  Where  no  quicksilver  has 
been  used,  the  gold  which  has  settled  in  the  flume  is  simply  gathered  up. 


110  DEFINITIONS   OF   PRACTICAL   MINING   TERMS.  (Ch.  8 

debris  which  was  swept  down  into  the  lowlands  [of  California  by 
hydraulic  mining],  a  protest  was  raised  by  the  farmers  dwelling 
there,  who  claimed  that  their  farms  were  being  ruined,  and  it  soon 
became  a  question  which  should  survive,  the  farmer  or  the  miner; 
for  in  places  the  gravels  and  sand  from  the  washings  choked  up 
streams  and  accumulated  to  a  depth  of  70  or  80  feet.  The  question 
was  settled  in  1884  in  favor  of  the  farmer  by  an  injunction  issued 
by  the  United  States  Circuit  Court  which  caused  many  of  the 
hydraulic  mines  to  suspend  operations,  and  at  a  later  date  this  was 
extended  by  state  legislation  adverse  to  the  hydraulic  mining  industry. 
Owing  to  this  setback,  hydraulic  mining  fell  to  a  comparatively  un- 
important place  in  the  gold-producing  industry  of  California,  while 
at  the  same  time  quartz  mining  increased.  The  passage  of  the  Ca- 
mietti  law  now  permits  hydraulic  mining,  but  requires  that  a  dam 
shall  be  constructed  across  the  stream  to  catch  the  'tailings.' 2T 

"  'Dredging'  consists  in  taking  the  gravel  from  the  river  with  some 
form  of  dredge.  *  *  *  The  gravel,  when  taken  from  the  river, 
is  discharged  onto  a  screen,  which  separates  the  coarse  stones,  and  the 
finer  particles  pass  over  amalgamated  plates,  tables  with  riffles,  and 
then  over  felt.  *  *  *  In  arid  regions,  where  the  gold-bearing 
sands  are  largely  the  product  of  disintegration,  and  water  for  wash- 
ing out  the  metal  is  wanting,  a  system  known  as  'dry  blowing'  is  re- 
sorted to."  28 

The  author  should  also  have  mentioned  "booming,"  where  the  water 
is  dammed  up  from  time  to  time  and  let  out  in  a  flood  to  cut  away 
the  gravel. 

Where  quicksilver  has  been  used,  the  amalgam  is  taken  and  treated  as  in  the 
case  of  a  clean-up  at  a  stamp  or  rotary  mill. 

27  The  refuse  which  goes  over  the  tail  end  of  the  sluice  box  or  is  other- 
wise washed  down. 

as  prof.  Heinrich  Reis'  Economic  Geology  of  the  U.  S.  346-349. 


§  32)  DEFINITIONS  OF  MINING   LAW  TERMS.  Ill 

CHAPTER  IX. 
DEFINITIONS  OF  MINING  LAW  TERMS. 

32.  Definition  of   "valuable  mineral  deposits.* 

83.  Definition  of  "vein"  or  "lode." 

34.  Definition  of  "placer." 

35.  Definition  of  "apex"  of  veins. 

36.  Definition  of  "course"  or  "strike"  of  veins. 

37.  Definition  of  "dip"  of  veins. 

38.  Definition  of  "mining  claim"  or  "location.** 

39.  Definition  of  "mine." 

In  addition  to  defining  practical  mining  terms,  it  is  desirable  to  de- 
fine some  of  the  mining  law  terms  as  a  preparation  for  the  discussion 
of  specific  mining  law  problems. 

VALUABLE  MINERAL  DEPOSITS. 

32.  Lands  are  mineral  if  they  contain  recognized  minerals  in  such. 
quantities  that  they  are  more  valuable  for  mining  purposes 
than  for  agricultural,  and  the  mineral  deposits  in  such  lands 
are  valuable  within  the  meaning  of  the  federal  statute  if, 
when  taken  up  first  for  mining,  they  have  such  value  that  the 
locator  cannot  be  called  irrational  in  locating  and  working 
them,  or  if,  when  taken  up  first  for  agriculture,  they  can  be 
mined  at  a  profit. 

The  federal  statute  throws  open  to  exploration  and  purchase  "all  val- 
uable mineral  deposits  in  lands  belonging  to  the  United  States."  1  By 
"valuable  mineral  deposits"  is  meant,  in  the  first  place,  deposits  known 
to  be  mineral  at  some  time  prior  to  the  issuance  of  a  United  States  pat- 
ent. "It  is  plain,  from  this  brief  statement  of  the  legislation  of  Con- 
gress, that  no  title  from  the  United  States  to  land  known  at  the  time 
of  sale  to  be  valuable  for  its  minerals  of  gold,  silver,  cinnabar,  or  cop- 
per can  be  obtained  under  the  pre-emption  or  homestead  laws,  or  the 
townsite  laws,  or  in  any  other  way  than  as  prescribed  by  the  laws  spe- 
cially authorizing  the  sale  of  such  lands,  except  in  the  states  of  Mich- 
igan, Wisconsin,  Minnesota,  Missouri,  and  Kansas.  We  say  'land 
known  at  the  time  to  be  valuable  for  its  minerals/  as  there  are  vast 
tracts  of  public  land  in  which  minerals  of  different  kinds  are  found,  but 
not  in  such  quantity  to  justify  expenditures  in  the  effort  to  extract 
them.  It  is  not  to  such  lands  that  the  term  'mineral'  in  the  sense  of  the 

i  Rev.  St.  U.  S.  §  2319  (U.  S.  Comp.  St.  1901,  p.  1424). 


112  DEFINITIONS   OF   MINING   LAW   TERMS.  (Ch.  9 

statute  is  applicable.  In  the  first  section  of  the  act  of  1866  no  designa- 
tion is  given  of  the  character  of  mineral  lands  which  are  free  and  open 
to  exploration.  But  in  the  act  of  1872,  which  repealed  that  section  and 
re-enacted  one  of  broader  import,  it  is  'valuable  mineral  deposits' 
which  are  declared  to  be  free  and  open  to  exploration  and  purchase. 
The  same  term  is  carried  into  the  Revised  Statutes.  It  is  there  enacted 
that  'lands  valuable  for  minerals'  shall  be  reserved  from  sale,  except 
as  otherwise  expressly  directed,  and  that  Valuable  mineral  deposits'  in 
lands  belonging  to  the  United  States  shall  be  free  and  open  to  explora- 
tion and  purchase.  We  also  say  'lands  known  at  the  time  of  their  sale 
to  be  thus  valuable/  in  order  to  avoid  any  possible  conclusion  against 
the  validity  of  titles  which  may  be  issued  for  other  kinds  of  land,  in 
which,  years  afterwards,  rich  deposits  of  mineral  may  be  discovered. 
It  is  quite  possible  that  lands  settled  upon  as  suitable  only  for  agricul- 
tural purposes,  entered  by  the  settler  and  patented  by  the  government 
under  the  pre-emption  laws,  may  be  found,  years  after  the  patent  has 
been  issued,  to  contain  valuable  minerals.  Indeed,  this  has  often  hap- 
pened. We,  therefore  use  the  term  'known  to  be  valuable  at  the  time  of 
sale,'  to  prevent  any  doubt  being  cast  upon  titles  to  lands  afterwards 
found  to  be  different  in  their  mineral  character  from  what  was  sup- 
posed when  the  entry  was  made  and  the  patent  issued."  2 

What  is  a  "mineral  deposit"  depends  somewhat  upon  the  meaning  of 
"mineral."  "It  is  not  easy  in  all  cases  to  determine  whether  any  given 
piece  of  land  should  be  classed  as  mineral  land  or  otherwise.  The 
question  may  depend  upon  many  circumstances,  such  as  whether  it  is 
located  in  those  regions  generally  recognized  as  mineral  lands,  or  in  a 
locality  ordinarily  regarded  as  agricultural  in  its  character.  Lands  may 
contain  the  precious  metals,  but  not  in  sufficient  quantities  to  justify 
working  them  as  mines,  or  make  the  locality  generally  valuable  for  min- 
ing purposes,  while  they  are  well  adapted  to  agricultural  or  grazing 
pursuits,  or  they  may  be  but  poorly  adapted  to  agricultural  purposes, 
but  rich  in  minerals ;  and  there  may  be  every  gradation  between  the  two 
extremes.  There  is,  however,  no  certain  well-defined,  obvious  bound- 
ary between  the  mineral  lands  arid  those  that  cannot  be  classed  in  that 
category.  Perhaps  the  true  criterion  would  be  to  consider  whether  up- 
on the  whole  the  lands  appear  to  be  better  adapted  to  mining  or  other 
purposes.  However  that  may  be,  in  order  to  determine  the  question, 
it  would,  at  all  events,  be  necessary  to  know  the  condition  and  circum- 
stances of  the  land  itself,  and  of  the  immediate  locality  in  which  it  is 
situated.  It  is  the  duty  of  the  officers  of  the  government  having  the 

2  DEFFEBACK  v.  HAWKE,  115  U.  S.  392,  404,  405,  6  Sup.  Ct.  95,  29  L.  Ed. 
423. 


§  32)  VALUABLE   MINERAL   DEPOSITS.  113 

matter  in  charge,  before  making  a  grant,  to  ascertain  these  facts,  and 
to  determine  the  problem  whether  the  lands  are  mineral  or  not."  3  The 
fact  is  that  the  term  "mineral  deposits"  cannot  be  considered  apart  from 
the  word  "valuable,"  and  that  the  full  term  "valuable  mineral  depos- 
its" is  not  used  in  any  technial  mineralogical  sense,  but,  like  the  term 
"fixture"  in  the  law  of  real  property,  has  a  flexible  meaning  according 
to  the  circumstances  of  the  given  case,  and  particularly  to  the  situation 
of  the  contending  parties. 

In  Lynch  v.  United  States,4  where  the  question  of  the  right  of  the 
defendant  to  cut  certain  timber  on  public  lands  depended  upon  whether 
the  land  was  "mineral  and  not  subject  to  entry  under  existing  laws  of 
the  United  States  except  for  mineral  entry,"  B  or  whether  it  was  agri- 
cultural, the  United  States  Circuit  Court  of  Appeals,  Ninth  Circuit, 
said  that  the  classification  of  the  land  as  mineral  by  commissioners  ap- 
pointed under  the  act  of  Congress  of  February  16,  1895,6  was  not  con- 
clusive, but  was  of  the  same  effect  as  the  return  of  mineral  lands  made 
by  the  surveyor  general ;  and  the  court  accordingly  considered  the  evi- 
dence of  the  actual  use  to  which  the  land  had  been  put.  A  verdict 
against  the  defendant  because  of  the  nonmineral  character  of  the  land, 
the  verdict  being  based  on  testimony  that  the  region  had  been  pros- 
pected, and,  though  float  was  found  over  it,  no  mineral-bearing  veins 
had  been  discovered,  and  that  small  tracts  near  defendant's  mill,  and 
also  adjoining  the  land  from  which  defendant  cut  the  timber,  were  cul- 
tivated to  crops,  was  allowed  to  stand.  The  court  said:  "Was  the 
land  mineral,  and  subj  ect  to  entry  as  such  under  the  laws  of  the  United 
States,  or  was  it  agricultural  land?  The  question  of  the  character  of 
land  is  always  one  of  fact,  and  what  evidence  is  more  satisfactory  than 
the  actual  use  to  which  it  has  been  placed  by  those  who  occupied  it  and 
made  it  a  means  of  livelihood  ?  It  may  not  be  conclusive  evidence,  since 
there  are  many  instances  where  valuable  mineral  deposits  have  been 
found  in  ground  devoted  to  other  than  mining  purposes,  and  where 
such  deposits  were  not  supposed  to  exist.  But  nevertheless  this  testi- 
mony as  to  the  actual  use  of  the  land  tends  to  establish  its  character 
and  clearly  is  relative  and  material  for  that  purpose."  7 

3  Ah  Yew  v.  Choate,  24  Cal.  562,  567.  In  conveyances  and  leases  of  land 
"mineral"  is  generally  used  in  the  commercial  sense  of  any  inorganic  substance 
found  in  nature,  having  sufficient  value,  separated  from  its  situs  as  'part  of 
the  earth,  to  be  mined,  quarried,  or  dug  for  its  own  sake,  or  its  own  specific 
purposes.  Hendler  v.  Lehigh  Valley  R.  Co.,  209  Pa.  256,  58  Atl.  486,  103  Am. 
St.  Rep.  1005. 

*  138  Fed.  535,  71  C.  C.  A.  59. 

*  Act  Cong.  June  3,  1878,  c.  150,  20  Stat.  88  (U.  S.  Comp.  St  1901,  p.  1528X 

*  28  Stat.  683,  c.  131. 

ff  Lynch  v.  United  States,  138  Fed.  535,  540,  71  C.  C.  A.  59. 

COST.MIN.L.— 8 


114  DEFINITIONS   OF   MINING   LAW   TEKMS.  (Cll.  9 

The  same  court,  in  the  earlier  case  of  United  States  v.  Rossi,8  in- 
volving the  same  timber  act,  where  the  verdict  below  was  in  favor  of 
the  defendants,  avoided  passing  on  an  instruction  below  about  mineral 
lands,  because  a  proper  exception  to  it  was  not  saved.  The  trial  court, 
after  telling  the  jury  that  "the  law  includes  as  mineral  lands,  not  only 
those  tracts  on  which  mineral  has  actually  been  discovered,  and  which 
has  been  or  can  be  legally  located  as  mining  locations,  but  also  all  oth- 
er lands  lying  in  reasonably  close  proximity  to  or  in  the  general  neigh- 
borhood of  such  tracts,  and  all  such  neighboring  lands  as  have  the 
general  characteristics  of  mining  lands,  even  if  mineral  has  not  been 
actually  discovered  therein," 9  instructed  them  further  as  follows : 
"Much  has  been  said  as  to  the  quantity  of  mineral  that  must  be  found 
in  ground  to  constitute  it  mineral  land.  The  laws  themselves  fix  no 
limits.  They  do  not  even  say  that  it  must  be  more  valuable  for  min- 
eral than  for  other  purposes.  It  is  therefore  a  subject  for  conjecture, 
— one  upon  which  opinions  may  and  do  differ.  But  I  feel  justified  in 
saying  to  you  that  ground  containing  only  a  trace  of  mineral — a  color 
— or  containing  it  in  such  small  quantities  that  a  miner  would  not  ex- 
pect it  ever  to  prove  profitable,  cannot  be  held  mineral  .land ;  but  when 
it  contains  sufficient  to  encourage  the  miner  to  claim  and  locate  it  in 
good  faith  as  mining  ground,  and  to  work  and  develop  it  in  the  reason- 
able expectation  of  finding  paying  quantities,  even  if  it  never  proves 
valuable,  it  is,  within  the  law,  mineral  land.  The  question  may  arise, 
how  are  we  to  know  the  miner's  opinions  on  these  questions  ?  My  an-, 
swer  is,  by  his  actions — by  what  he  does,  whether  or  not  he  located 
the  ground  and  continues  to  occupy  it  and  develop  it.  I  may  add  in 
this  connection  that  an  occasional  location  here  and  there  over  a  coun- 
try, which  is  not  developed  and  not  worked,  is  just  such  evidence  as 
constitutes  the  entire  country  a  mineral  district;  but  the  mining 'opera- 
tions carried  on  must  be  such  as  to  indicate  that  those  who  do  locate 
claims  and  who  carry  on  the  work  have  faith  in  the  country.  I  mean 
by  that  that  you  cannot  make  the  mere  appearance  of  mineral  in  a 
country  the  excuse  for  claiming  the  whole  country  to  be  mineral.  There 
must  be  something  substantial  back  of  it  in  order  to  justify  the  claim 
that  a  country  is  mineral.  Now,  in  this  particular  case  you  must  judge 
of  the  country  by  what  has  been  produced  there,  by  what  has  been 
done,  and  from  all  that  conclude  whether  or  not  the  men  who  are  en- 
gaged in  mining  in  good  faith  look  upon  that  as  mineral  country.  I 
do  not  know  any  better  rule  or  test  than  the  judgment  of  men  who  are 
engaged  in  mining.  If  that  class  of  men  deem  a  country  a  mineral 

e.  133  Fed.  380,  66  C.  C.  A.  442. 

»  United  States  v.  Rossi,  133  Fed.  380,  382,  66  C.  C.  A.  442. 


§  32)  VALUABLE   MINERAL   DEPOSITS.  115 

country,  and  show  it  by  their  acts  and  works,  it  justifies  us  in  conclud- 
ing that  it  is  a  mineral  country."  10 

The  prior  bona  fide  claimant  is  given  the  benefit  of  the  doubt.  If  the 
ground  is  taken  up  first  as  agricultural  land,  or  is  part  of  lands  grant- 
ed to  a  railroad  or  to  a  state  for  school  purposes,  from  which  lands 
minerals  are  excepted,  then  it  cannot  be  shown  to  be  a  valuable  mineral 
deposit,  unless  it  will  pay  to  work  and  in  general  is  more  valuable  for 
mining  than  for  agriculture.11  This  is  so,  even  though  the  agricultural 
entry  has  been  made  to  cover  an  abandoned  mining  claim.12  But  if 
the  ground  is  located  as  mining  land  first,  then  it  must  be  deemed  min- 
eral if  it  contains  a  placer  deposit  or  a  vein  of  mineral  of  such  value, 
however  slight,  that  a  miner  cannot  be  called  wholly  irrational  for 
working  it  in  the  hope  of  a  successful  outcome. 

"There  may  be  a  vast  difference  between  mineral  ground  which  is 
valuable  for  exploitation  and  that  which  appears  to  be  valuable  for 
exploration.  There  are  immense  tracts  which  appear  to  the  miner  to 
be  valuable  for  the  latter  purpose,  and  a  large  portion  of  which  de- 
velops to  be  valueless  for  the  former.  This  is  evidenced  by  the  honey- 
combed and  deserted  mountains  throughout  the  mining  regions,  where 
toil  and  wealth  have  been  expended  on  leads  which  once  attracted  the 
miner's  exploration,  but  where  the  sound  of  the  pick  and  the  drill  is 
long  since  stilled.  And  it  is  just  this  fact  that  has  made  and  will  make 
the  mines  the  ever-present  and  alluring  appearance  of  value  and  the 
occasional  reward  of  development.  Without  prospecting  there  will  be 
no  discovered  mines.  Without  the  privilege  to  claim  and  locate  and 
hold  a  discovery,  there  will  be  no  prospecting.  A  prospect  not  once  in 
100  times  is  a  mine  in  sight.  If  the  locator  must  show  a  paying  mine  at 
location,  the  riches  in  these  mountains  are  a  locked  treasury.  The 
law  does  not  contemplate  this.  The  mineral  lands  are  open  for  two 
purposes — for  exploration  and  for  purchase.  Exploration  precedes 
purchase.  It  opens  the  way  for  purchase.  Without  exploration,  pur- 
chase would  be  rare.  A  miner  would  desire  to  purchase  the  mineral 
lands  at  once,  if  they  at  once  appeared  to  be  of  sufficient  value  to  pay 
to  work.  He  would  desire  to  explore  them,  if  they  seemed  sufficiently 
valuable  to  attract  exploration.  It  is  a  rare  claim  that  is  a  mine  at  the 
grass  roots,  or  where  the  paying  vein  is  first  found  at  or  near  the  sur- 
face. The  history  of  the  mining  countries  has  shown  that,  in  the  vast 

10  id. 

11  Hunt  v.  Steese,  75  Cal.  621,  17  Pac.  920;   United  States  v.  Reed  (O.  C.)  12 
Sawy.  99,  28  Fed.  482;    Alford  v.  Barnum,  45  Cal.  482;    DAVIS  v.  WIEB- 
BOLD,  139  U.  S.  507,  11  Sup.  Ct.  628,  35  L.  Ed.  238 ;   United  States  v.  Central 
Pac.  R.  Co.  (C.  C.)  93  Fed.  871. 

12  Blackburn  v.  United  States,  5  Ariz.  162,  48  Pac.  904, 


116  DEFINITIONS   OF   MINING   LAW    TERMS.  (Ch.  9 

majority  of  cases,  years  of  toil  and  thousands  of  dollars  have  been  re- 
quired to  demonstrate  that  a  mineral  vein  will  pay  to  work.  And  in 
many  of  them,  even  after  years  of  immense  production,  when  dead 
work,  prospecting,  and  development  is  offset  against  output,  whether 
they  have  paid  to  work  is  a  doubtful  proposition.  Must  the  miner 
await  large  development  and  tremendous  expenditure  before  he  can 
take  the  first  steps,  by  locating  and  recording,  to  secure  to  himself  the 
right  of  possession,  and  of  a  grant  from  the  government,  when  the 
great  mine  is  developed  ?  I  think  not. 

"Again,  the  government  will  not  issue  a  patent  for  a  mine  at  once  up- 
on a  discovery,  no  matter  how  valuable  it  then  appears  and  actually  is. 
It  requires,  first,  the  expenditure  of  $500  in  improvement  and  develop- 
ment. For  what  purpose  ?  In  order  to  demonstrate  that  the  claim  is 
of  that  character  that  the  government  will  grant  ground  as  a  mine. 
Before  the  mining  acts  of  Congress,  the  miner  was  a  trespasser  upon 
the  public  domain.  The  acts  of  Congress  gave  him  rights  upon  the 
mineral  lands.  The  object  of  the  requirement  of  the  expenditure  of 
$100  annually  before  the  issuance  of  patent,  and  of  $500  in  the  aggre- 
gate before  patent,  was  to  develop  the  mines  and  demonstrate  their 
character.  If  it  were  the  ordinary  nature  of  valuable  mining  claims  to 
appear,  upon  the  instant  of  discovery,  to  be  of  sufficient  value  to  pay 
to  work  them,  why  make  the  requirements  of  these  expenditures  in 
development  before  the  issuance  of  patent?  The  whole  spirit  of  the 
statutes,  and  the  construction  given  by  the  learned  tribunals  that  have 
considered  them,  is  not  that  the  prospector  must  find  a  paying  mine  be- 
fore he  can  locate  his  claim.  If  it  were,  mining  prospecting  in  these 
regions  would  suffer  an  instant  and  well-nigh  total  paralysis.  If  the 
fear  be  suggested  that  speculative  locations  may  take  the  public  do- 
main, we  can  do  no  .better  than  adopt  the  language  of  Mr.  Justice 
Field,  cited  above  from  Erhardt  v.  Boaro,  113  U.  S.  536,  5  Sup.  Ct. 
565,  28  L.  Ed.  1116,  which  he  concludes  with  the  remark  that  'a  jury 
from  the  vicinity  of  the  claim  will  seldom  err  in  their  conclusions  on 
the  subject/ 

"I  find  an  ample  support  in  my  views  in  the  decisions  of  the  United 
States  Supreme  Court.  'A  valid  location  of  a  mining  claim  may  be 
made  whenever  the  prospector  has  discovered  such  indications  of  min- 
eral that  he  is  willing  to  spend  his  time  and  money  in  following  in  ex- 
pectation of  finding  ore/  Harrington  v.  Chambers,  3  Utah  94,  1  Pac. 
362.  This  language  I  do  not  feel  that  I  can  fully  adopt.  It  goes  fur- 
ther than  there  is  necessity  for,  or  is  required  to  sustain  the  views  I 
hold.  If  it  were  modified  to  say,  'in  expectation  of  finding  ore  suffi- 
ciently valuable  to  work/  the  views  of  the  learned  justice  would  be 


§  £2)  VALUABLE   MINERAL   DEPOSITS.  117 

nearer  to  the  opinion  I  hold.  But  observe  Judge  Hallett's  words  cited 
above,  where  he  says :  'Nor  is  it  necessary  ,that  the  ore  shall  be  of 
economical  value  for  treatment' — and  the  language  of  the  context. 
Stevens  v.  Gill,  Fed.  Cas.  No.  13,398.  'It  is  only  necessary  to  dis- 
cover a  genuine  mineral  vein  or  lode,  whether  small  or  large,  rich  or 
poor,  at  the  point  of  discovery.'  North  Noonday  Min.  Co.  v.  Orient 
Mining  Co.  (C.  C.)  1  Fed.  522,  6  Sawy.  299.  'With  well-defined  bound- 
aries, very  slight  evidence  of  ore  within  such  boundaries  will  prove  the 
existence  of  the  lode' — and  the  context.  Iron  Silver  Min.  Co.  v. 
Cheesman,  116  I/.  S.  538,  6  Sup.  Ct.  481,  29  L.  Ed.  712.  And  in  the 
language  adopted  by  Mr.  Justice  Field  in  speaking  of  a  lode:  'It  is 
an  alteration  of  the  verb  "lead"  and  whatever  the  miner  could  follow 
expecting  to  find  ore  was  his  "lode."  Some  formation  within  which  he 
could  find  ore,  and  out  of  which  he  could  not  expect  to  find  ore,  was 
his  lode.  The  terms  "lode  star,"  "guiding  star,"  and  "north  star"  are  of 
the  same  origin.'  So  that,  if  the  miner  finds  that  which  is  a  lode  or 
vein  within  the  approved  definition,  containing  valuable  mineral  de- 
posits, if  it  is  a  vein  of  that  character,  and  that  which  he  can  follow, 
as  indicated — a  mineral  lode,  his  guide,  his  star — he  may  claim  it  and 
locate  it  and  hold  it,  without  being  required  to  show  that  at  the  time  of 
location  it  contained  mineral  deposits  of  sufficient  value  to  justify 
work  to  extract  them."  13 

"Reverting  to  the  characteristic  of  a  vein  or  lode,  appearing  from 
the  definitions  above  quoted,  that  its  filling  must  consist  of  a  body  of 
mineral  or  mineral-bearing  rock,  what  value  such  material  should  con- 
tain is  a  matter  not  devoid  of  difficulty,  and  no  standard  of  value  ap- 
plicable to  all  such  cases  has  yet,  and  probably  never  will  be,  devised. 
It  must  necessarily  depend  upon  the  characteristics  of  the  district  or 
country  in  which  the  vein  or  lode,  in  any  particular  instance  claimed 
to  exist,  is  located,  and  upon  the  character,  as  to  boundaries,  of  the 
vein  itself.  If  the  country  rock,  or  the  general  mass  of  the  mountain 
outside  of  the  limits  of  the  vein,  is  wholly  barren,  slight  values  of  the 
vein  material,  as  before  stated,  would  seem  to  satisfy  the  law ;  but  if, 
on  the  other  hand,  the  rock  of  the  district  generally  carries  values,  then 
undoubtedly  the  values  in  the  vein  materials,  where  the  boundaries  of 
the  vein  are  not  well  or  not  at  all  defined,  either  on  the  surface  or  at 
depth,  should  be  in  excess  of  those  of  the  country  rock,  else  there  can 
be  no  line  of  demarkation,  nor,  where  the  rock  is  generally  broken, 
shattered,  and  fissured,  anything  to  separate  it  from  the  adjacent  coun- 

13  SHREVE  v.  COPPER  BELL  MIN.  CO.,  11  Mont.  309,  343-345,  28  Pac. 
315.  This  was  a  dissenting  opinion,  but  on  this  point  the  majority  opinion  was 
in  accord,  11  Mont  327,  28  Pac.  315. 


118  DEFINITIONS    OF   MINING   LAW    TERMS.  (Ch.  & 

try.    Values,  therefore,  of  the  rilling  of  a  vein,  must  be  considered  with 
special  reference  to  the  district  where  the  vein  or  lode  is  found."  14 

So  Judge  Hallett,  in  charging  a  jury  as  between  two  mining  claim- 
ants, said:  "A  lode  cannot  exist  without  valuable  ore;  but,  if  there  is 
value,  the  form  in  which  it  appears  is  of  no  importance.  Whether  it 
be  of  iron  or  manganese,  or  carbonate  of  lead,  or  something  else  yield- 
ing silver,  the  result  is  the  same.  The  law  will  not  distinguish  between 
different  kinds  and  classes  of  ore,  if  they  have  appreciable  value  in 
the  metal  for  which  the  location  was  made.  Nor  is  it  neccessary  that 
the  ore  shall  be,  of  economical  value  for  treatment.  It  is  enough  if  it 
is  something  ascertainable,  something  beyond  a  mere  trace,  which  can 
be  positively  and  certainly  verified  as  existing  in  the  ore.  In  the  case 
of  silver  ore  the  value  must  be  recognized  by  ounces — one  or  more  in 
the  ton  of  ore ;  and  if  it  comes  to  that  it  is  enough,  other  conditions 
being  satisfied,  to  establish  the  existence  of  the  lode."  15  An  ounce  of 
silver  to  the  ton  is  therefore  enough  to  make  value,16  and  what  con- 
stitutes mineral  sufficient  to  make  a  mineral  deposit  is  in  general  de- 
termined by  mineralogy  and  trade.  The  land  department  declares  that 
"whatever  is  recognized  as  mineral  by  the  standard  authorities  on  the 
subject,  whether  of  metallic  or  other  substances,  when  the  same  is 
found  in  the  public  lands  in  quantity  and  quality  to  render  the  land 
more  valuable  on  account  thereof  than  for  agricultural  purposes  should 
be  treated  as  coming  within  the  purview  of  the  mining  laws."  17  And 
while  the  authorities  have  not  been  uniform  to  that  effect,18  it  seems 
perfectly  clear  that  mineral  in  no  sense  means  metal.  "In  its  common 
and  ordinary  signification  the  word  'mineral'  is  not  a  synonym  of 
'metal,'  but  is  a  comprehensive  term,  including  every  description  of 
stone  and  rock  deposits,  whether  containing  metallic  substances  or  en- 
tirely nonmetallic."  19 

i*  GRAND  CENTRAL  MIN.  CO.  v.  MAMMOTH  MIN.  CO.,  29  Utah,  490, 
83  Pac.  648,  678. 

is  STEVENS  v.  GILL,  1  Morr.  Min.  Rep.  576,  579,  Fed.  Cas.  No.  13,398. 
That  merely  showing  the  presence  of  quartz  and  vein  matter,  without  proof 
of  some  value,  will  not  do,  see  Territory  v.  Mackey,  8  Mont.  168,  19  Pac.  395. 

is  But  see  the  instruction  of  the  lower  court  in  United  States  v.  Rossi,  133 
Fed.  380,  382,  66  C.  C.  A.  442. 

17  Pacific  Coast  Marble  Co.  v.  Northern  Pac.  R.  Co.,  25  Land  Dec.  Dep.  Int. 
233,  244. 

is  See,  for  instance,  Wheeler  v.  Smith,  5  Wash.  704,  32  Pac.  784,  where  the 
court  tried  to  confine  mineral  to  "mineral  ores"  and  to  "metals  for  which  min- 
ing works  were  prosecuted." 

i»  Northern  Pac.  R.  Co.  v.  Soderberg  (C.  C.)  99  Fed.  506,  507;  Id.,  104  Fed. 
425,  43  C.  C.  A.  620 ;  Id.,  188  U.  S.  526,  23  Sup.  Ot.  365,  47  L.  Ed.  575 ;  Webb 
v.  American  Asphaltum  Min.  Co.,  157  Fed.  203,  84  O.  C.  A.  651 ;  McCombs  v.. 
Stephenson  (Ala.)  44  South  867;  Henderson  v.  Fulton,  35  Land  Dec.  Dep.  Int 


§  32)  VALUABLE    MINERAL   DEPOSITS. 

Among  minerals  classified  as  such  by  the  land  department,  in  ad- 
dition to  the  gold,  silver,  cinnabar,  lead,  tin,  and  copper  specifically 
named  by  section  2320,  Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901,  p.  1424), 
are  asphaltum,20  borax,21  building  stone,22  carbonate  of  soda,23  aurif- 
erous cement,24  clay,25  (other  than  brick  clay),26  coal,27  fire  clay,28 
guano,29  gypsum,30  kaolin,31  limestone,82  marble,33  mica,84  nitrate  of 

652.  For  definitions  of  mineral,  see  Johnston  v.  Crimpton  (1899)  2  Ch.  190; 
Glasgow  v.  Fairlie,  13  A.  C.  6S3,  689,  690 ;  Hendler  v.  Lehigh  Valley  R.  Co.,  209 
Pa.  256,  58  Atl.  486,  103  Am.  St.  Rep.  1005.  In  the  last  case  common  mixed 
sand  which  could  be  used  only  for  grading  was  held  not  to  be  a  mineral,  with- 
in an  exception  in  a  deed. 

20  Tulare  Oil  &  Min.  Co.  v.  Southern  Pac.  R.  Co.,  29  Land  Dec.  Dep.  Int. 
269.     See  Webb  v.  American  Asphaltum  Min.  Co.,  157  Fed.  203,  84  C.  C.  A.  673. 

21  Regulations,  1  Land  Dec.  Dep.  Int.  560. 

22  Conlin  v.  Kelly,  12  Land  Dec.  Dep.  Int.  1;    Beaudette  v.  Northern  Pac. 
R.  Co.,  29  Land  Dec.  Dep.  Int.  248.    Any  stone  deposit  of  special  commercial 
value  makes  the  ground  placer.    Vandoren  v.  Plested,  16  Land  Dec.  Dep.  Int. 
508;    McGlenn  v.  Wienbroeer,  15  Land  Dec.  Dep.  Int.  370.     See  Freezer  v. 
Sweeney,  8  Mont.  508,  21  Pac.  20.     Stone  land  cannot  be  located  or  patented 
as  a  lode  claim.     Henderson  v.  Fulton,  35  Land  Dec.  Dep.  Int.  652;    Long  v. 
Isaksen,  23  Land  Dec.  Dep.  Int.  353;    Wheeler  v.  Smith,  23  Land  Dec.  Dep. 
Int.  395.    Act  Aug.  4,  1892,  c.  375,  27  Stat.  348  (U.  S.  Comp.  St.  1901,  p.  1434)", 
settles  it  that  land  "valuable  chiefly  for  stone"  may  be  located  as  mineral  un- 
der the  timber  and  stone  act,  and  with  less  trouble  than  under  the  placer  min- 
ing act. 

23  See  soda. 

24  Phifer  v.  Heaton,  27  Land  Dec.  Dep.  Int.  57. 

ZBAldritt  v.  Northern  Pac.  R.  Co.,  25  Land  Dec.  Dep.  Int.  349. 
2«  King  v.  Bradford,   31  Land  Dec.   Dep.   Int.   108. 

27  Brown  v.  Northern  Pac.  R.  Co.,  31  Land  Dec.  Dep.  Int.  29.     But  coal 
lands  are  entered  and  patented  under  special  statutes.     Rev.   St.  U.   S.  §§ 
2347-2352  ftj.   S.  Comp.   St.   1901,  pp.   1440,  1441). 

28  See  clay. 

29  Richter  v.  Utah,  27  Land  Dec.  Dep.  Int.  95.     Under  the  United  States 
guano  islands   act  a  discoverer  of  an  unoccupied  guano  island  has  only  a 
license  to  occupy  the  island  and  remove  the  guano,  and  the  license  is  rev- 
ocable at  the  will  of  the  United  States.    Duncan  v.  Navassa  Phosphate  Co., 
137  U.   S.  647,  11  Sup.  Ct  242,  34  L.  Ed.  825. 

sow.  H.  Hooper,  1  Land  Dec.  Dep.  Int.  571;  McQuiddy  v.  California,  29 
Land  Dec.  Dep.  Int.  181. 

si  Is  china  clay.     See  clay. 

32  Shepherd  v.  Bird,  17  Land  Dec.  Dep.  Int.  82;  Morrill  v.  Northern  Pac. 
R.  Co.,  30  Land  Dec.  Dep.  Int.  475.  But  see  Wheeler  v.  Smith,  5  Wash. 
704,  32  Pac.  784. 

ss  Henderson  v.  Fulton,  35  Land  Dec.  Dep.  Int.  652;  Pacific  Coast  Marble 
Co.  v.  Northern  Pac.  R.  Co.,  25  Land  Dec.  Dep.  Int.  233;  Schrirnpf  v. 
Northern  Pac.  R.  Co.,  29  Land  Dec.  Dep.  Int.  327.  Compare  Phelps  v. 
Church  of  Our  Lady  Help  of  Christians,  115  Fed.  882,  53  C.  C.  A.  407. 

»*  See  Union  Oil   Co.,  25  Land  Dec.  Dep.  Int.  351,  354. 


120  DEFINITIONS   OF   MINING   LAW   TERMS.  (Ch.  9 

soda,35  oil  (petroleum),38  phosphates,37  porcelain  clay,88  salt,39  slate,4* 
soda,41  sandstone,42  stone,43  sulphur.44 

The  definitions  of  minerals  have  been  discussed  quite  fully  recently 
by  the  Supreme  Court  of  the  United  States.  That  court  in  holding 
granite  quarries  to  be  mineral  lands  said : 

"The  word  'mineral*  is  used  in  so  many  senses,  dependent  upon  the 
context,  that  the  ordinary  definitions  of  the  dictionary  throw  but  lit- 
tle light  upon  its  signification  in  a  given  case.  Thus  the  scientific  divi- 
sion of  all  matter  into  the  animal,  vegetable,  or  mineral  kingdom  would 
be  absurd  as  applied  to  [the  exception  of  minerals  from]  a  grant  of 
lands,  since  all  lands  belong  to  the  mineral  kingdom,  and  therefore 
could  not  be  excepted  from  the  grant  without  being  destructive  of  it. 
Upon  the  other  hand,  a  definition  that  would  confine  it  to  the  precious 
metals — gold  and  silver — would  so  limit  its  application  as  to  destroy 
at  once  half  the  value  of  the  exception.  Equally  subversive  of  the 
grant  would  be  the  definition  of  minerals  found  in  the  Century  Diction- 
ary, as  'Any  constituent  of  the  earth's  crust/  and  that  of  Bainbridge  on 
Mines,  'All  the  substances  that  now  form,  or  which  once  formed,  a 
part  of  the  solid  body  of  the  earth/  Nor  do  we  approximate  much 
more  closely  to  the  meaning  of  the  word  by  treating  minerals  as  sub- 

8»  See  soda. 

se  McQuiddy  v.  State  of  California,  29  Land  Dec.  Dep.  Int.  181.  See 
Gill  v.  Weston,  110  Pa.  312,  1  Atl.  921;  Murray  v.  Allred,  100  Tenn.  100, 
43  S.  W.  355,  39  L.  R.  A.  249,  66  Am.  St.  Rep.  740;  Lanyon  Zinc  Co.  v. 
Freeman,  68  Kan.  691,  75  Pac.  995;  Isom  v.  Rex  Crude  Oil  Co.,  147  Cal. 
659,  82  Pac.  317;  Preston  v.  White,  57  W.  Va.  278,  50  S.  E.  236;  Gird 
v.  California  Oil  Co.  (C.  C.)  60  Fed.  532;  Van  Horn  v.  State,  5  Wyo.  501, 
40  Pac.  964;  Suit  v.  Hochstetter  Oil  Co.  (W.  Va.)  61  S.  E.  307.  But  see 
Union  Oil  Co.,  23  Land.  Dec.  Dep.  Int.  222,  reversed  in  Union  Oil  Co.,  25 
Land  Dec.  Dep.  Int.  351.  And  see  Dunham  v.  Kirkpatrick,  101  Pa.  36, 
47  Am.  Rep.  696;  Detlor  v.  Holland,  57  Ohio  St.  492,  49  N.  E.  690,  40  L. 
R.  A.  266.  By  Act  Cong.  Feb.  11,  1897,  c.  216,  29  Stat.  526  (U.  S.  Comp. 
St.  1901,  p.  1434),  oil  lands  may  be  entered  and  patented  as  placers.  This 
provides  for  lands  containing  "petroleum  or  other  mineral  oils."  See 
Bay  v.  Oklahoma  Southern  Gas,  Oil  &  Min.  Co.,  13  Okl.  425,  73  Pac.  936. 

37  Gary  v.  Todd,  18  Land  Dec.  Dep.  Int.  58;  Pacific  Coast  Marble  Co.  v. 
Northern  Pac.  R.  Co.,  25  Land  Dec.  Dep.  Int.  233;  Florida  Center  &  P.  Ry. 
Co.,  26  Land  Dec.  Dep.  Int.  600. 

ss  See  clay. 

39  Salt   is   governed  by  Act  Cong.   Jan.   31,   1901,   c.   186,  31   U.    S.    Stat. 
745  (U.  S.  Comp.  St.  1901,  p.  1435).     That  saline  lands  are  mineral  anyway,  see 
Oarrard  v.  Peak  Mines,  94  Fed.  983,  36  d  O.  A.  603. 

40  Schrimpf  v.   Northern  Pac.  R.  Co.,  29  Land  Dec.  Dep.  Int.  327. 
*i  See  Regulations,  1  Land  Dec.  Dep.  Int.  560. 

*2  See  building  stone. 

**  See  building   stone.  • 

*<  See  Regulations,  1  Land  Dec.  Dep.  Int  560. 


§  32)  VALUABLE    MINERAL   DEPOSITS.  121 

stances  which  are  "mined/  as  distinguished  from  those  which  are  'quar- 
ried,' since  many  valuable  deposits  of  gold,  copper,  iron,  and  coal  lie 
upon  or  near  the  surface  of  the  earth,  and  some  of  the  most  valuable 
building  stone,  such,  for  instance,  as  the  Caen  stone  in  France,  is  ex- 
cavated from  mines  running  far  beneath  the  surface.  *  *  *  Con- 
siderable light  is  thrown  upon  the  congressional  definition  of  the  word 
'mineral'  by  the  acts  subsequent  to  the  Northern  Pacific  grant  of  1864 
and  prior  to  the  definite  location  of  the  line  in  1884.  [The  mining 
law  acts  of  1866, 1870,  and  1872,  and  the  stone  and  timber  act  of  1878, 
and  amendments  thereto,  were  here  cited  and  discussed.] 

"Conceding  that  in  1864  Congress  may  not  have  had  a  definite  idea 
with  respect  to  the  scope  of  the  word  'mineral/  it  is  clear  that  in  1884, 
when  the  line  of  this  road  was  definitely  located,  it  had  come  to  be 
understood  as  including  all  lands  containing  Valuable  mineral  de- 
posits/ as  well  as  lands  'chiefly  valuable  for  stone/  and  that,  when  the 
grant  of  1864  first  attached  to  particular  lands  by  the  definite  location 
of  the  road  in  1884,  the  railway  found  itself  confronted  with  the  fact 
that  the  word  'mineral'  had  by  successive  declarations  of  Congress 
been  extended  to  include  all  valuable  mineral  deposits.  As  no  vested 
rights  had  been  acquired  by  the  railway  company  prior  to  the  definite 
location  of  its  line,  it  took  the  lands  in  question  incumbered  by  such 
definitions  as  Congress  had  seen  fit  to  impose  upon  the  word  'mineral' 
subsequent  to  1864.  *  *  *  The  rulings  of  the  land  department,  al- 
most uniformly,  have  lent  strong  support  to  the  theory  of  the  patentee 
that  the  words  'valuable  mineral  deposits'  should  be  construed  as  in- 
cluding all  lands  chiefly  valuable  for  other  than  agricultural  purposes, 
and  particularly  as  including  nonmetallic  substances,  among  which  are 
held  to  be  alum,  asphaltum,  borax,  guano,  diamonds,  gypsum,  resin, 
marble,  mica,  slate,  amber,  petroleum,  limestone,  building  stone,  and 
coal.  The  cases  are  far  too  numerous  for  citation  and  there  is  prac- 
tically no  conflict  in  them. 

"The  decisions  of  the  state  courts  have  also  favored  the  same  inter- 
pretation. *  *  We  do  not  deem  it  necessary  to  attempt  an  exact 
definition  of  the  words  'mineral  lands'  as  used  in  the  act  of  July  2, 
1864.  *  *  *  Indeed,  we  are  of  the  opinion  that  this  legislation 
consists  with,  rather  than  opposes,  the  overwhelming  weight  of  au- 
thority to  the  effect  that  mineral  lands  include,  not  merely  metallifer- 
ous lands,  but  all  such  as  are  chiefly  valuable  for  their  deposits  of  a 
mineral  character  which  are  useful  in  the  arts  or  valuable  for  purpos- 
es of  manufacture."  4* 

*  6  NORTHERN  PAC.  R.  CO.  v.  SODERBERG,  188  U.  S.  526,  530,  531, 
533,  534,  536,  537,  23  Sup.  Ct.  365,  47  L.  Ed.  575. 


122  DEFINITIONS   OF   MINING   LAW   TERMS.  (Ch.  9 


A  VEIN  OB  LODE  OF  ROCK  IN  PLACE. 

33.  A  vein  or  lode,  within  the  meaning  of  the  federal  statute,  is  in- 
capable of  a  hard  and  fast  legal  definition;  but  in  general  it 
may  be  said  to  be  a  reasonably  continuous  body  of  mineral- 
bearing  rock  in  the  general  mass  of  the  mountain  and  of 
greater  value  than  the  surrounding  country  rock.  While  the 
body  of  mineral-bearing  rock  must  be  reasonably  continuous, 
its  contents  are  rock  in  place,  if  held  together  by  inclosing; 
walls,  even  though  those  contents  are  broken  up. 

All  mineral  deposits  that  may  not  be  located  as  lode  claims  and 
have  no  special  provision  for  them  are  to  be  located  as  placers,  as  the 
statute  provides  that  "claims  usually  called  'placers'  including  all 
forms  of  deposit,  excepting  veins  of  quartz  or  other  rock  in  place, 
shall  be  subject  to  entry  and  patent."  46  The  first  thing  to  do,  therefore, 
is  to  get  an  idea  of  what  a  vein  is.  The  law  has  tried  to  look  at  the 
matter  from  the  miner's  standpoint ;  but,  though  the  miner's  idea  of  a 
vein  still  differs  somewhat  from  the  geologist's,  the  proper  starting 
place  is  with  geology. 

The  Geologist's  Definition  of  a  Vein. 

When  a  geologist  talks  of  a  true  vein  he  means  a  fissure  vein.  "A 
fissure  vein  may  be  defined  as  a  tabular  mineral  mass  occupying  or 
closely  associated  with  a  fracture  or  set  of  fractures  in  the  inclosing 
rock,  and  formed  either  by  filling  of  the  fissures  as  well  as  pores  in 
the  wall  rock,  or  by  replacement  of  the  latter  (metasomatism).  When 
the  vein  is  simply  the  result  of  fissure  filling,  the  ore  and  gangue  min- 
erals are  often  deposited  in  successive  layers  on  the  walls  of  the  fis- 
sure (Rico,  Colo.) ;  the  width  of  the  vein  depending  on  the  width  of 
the  fissure  and  the  boundaries  of  the  ore  mass  being  sharp.  In  most 
cases,  however,  the  ore-bearing  solutions  have  entered  the  wall  rock 
and  either  filled  its  pores  or  replaced  it  to  some  extent,  thus  giving  the 
vein  an  indefinite  boundary.  Therefore  the  width  of  the  fissures  does 
not  necessarily  stand  in  any  direct  relation  to  the  width  of  the  vein 
(Butte,  Mont)."  *7  And  the  same  writer  states  at  another  place :  "The 
manner  in  which  fissure  veins  have  been  filled  and  the  source  of  the 
metals  which  they  contain  formed  a  most  fruitful  subject  of  discussion 
among  the  earlier  geologists.  Four  general  theories  were  advanced 
at  an  early  date.  They  are :  (1)  Contemporaneous  formation,  a  theory 
no  longer  advocated  by  any  one.  (2)  Descension,  which  likewise  no 
longer  has  any  adherents.  (3)  Lateral  secretion,  in  which  the  vein 

*  e  Rev.    St.   U.    S.,   §   2329   (U.   S.  Comp.    St.   1901,   p.   1432). 
*7  prof.  Heinrich  Ries'  Economic  Geology  of  the  U.  S.  23C  - 


§  33)  VEIN   OR   LODE   OF   ROCK   IN   PLACE.  123 

contents  are  supposed  to  have  been  leached  from  the  wall  rock,  usually 
in  the  immediate  vicinity  of  the  fissure,  but  at  variable  depths  below 
the  surface.  Some  geologists  holding  this  view  believe  that  the.  area 
leached  was  very  extensive,  and  not  confined  to  the  immediate  vicinity 
of  the  walls.  (4)  Ascension,  the  material  being  deposited  by  infiltra- 
tion, sublimation  with  steam,  sublimation  as  gas,  or  igneous  injection. 
The  several  arguments  for  or  against  these  theories  are  well  set  forth 
in  Kemp's  paper,48  and  it  will  suffice  here  to  state  that  of  the  various 
ones  those  of  lateral  secretion  and  ascension  by  infiltration  are  the 
most  rational.  It  is  probable  that  the  majority  of  geologists  now  believe 
in  a  modified  theory  of  lateral  secretion,  in  which  the  area  of  supply 
extends  beyond  the  immediate  walls  of  the  fissure,  and  that  the  ore- 
bearing  solutions  have  either  ascended  the  fissure  or  entered  through 
the  walls."  49 

On  the  following  page  is  a  very  interesting  picture  from  Lakes'' 
Prospecting  for  Gold  and  Silver,  supra,  showing  two  systems  of  ex- 
posed fissure  veins  crossing  each  other.50 

A  "dike"  is  a  fissure  which  has  become  filled  with  lava  or  porphyry 
because  it  tapped  a  molten  rock  reservoir.  "In  such  cases  the  porphyry 
dike  or  intrusive  sheet  may,  if  it  be  mineralized,  answer  all  intents 
and  purposes  of  a  mineral  vein,  or  the  ore  may  be  found  on  one  or  both 
sides  of  such  a  sheet,  in  the  line  of  separation  and  weakness  between 
it  and  the  adjacent  strata,  or  it  may  permeate  and  mineralize,  by  a  'sub- 
stitution' process,  an  adjacent  porous  or  soluble  rock,  such  as  limestone. 
Thus  both  in  the  dike  or  intrusive  sheet  itself,  as  well  as  at  its  con- 
tact with  other  rocks,  the  prospector  should  look  for  signs  of  precious 
metal."  51 

A  "contact  vein"  is  a  vein  along  the  plane  of  contact  between  un- 
like rock  formations.  "Another  line  of  weakness  for  the  attack  of 
mineral  solutions  is  at  the  juncture  of  porphyry  sheet  or  dike  with  some 
other  rock.  The  interval  between  them  is  often  occupied  by  a  'contact 
vein/  The  heat  of  the  volcanic  matter,  together  with  steam,  may  have 
influenced  the  solutions,  even  if  the  porphyry  did  not  actually  supply 
the  metallic  element  in  the  vein."  B2  A  frequent  instance  of  a  contact 
vein  is  between  porphyry  and  limestone.53 

After  treating  fissure  veins,  Ries  disposes  of  "other  forms  of  ore 
deposits"  as  follows :  "  'Impregnations'  represent  deposits  in  which 

*s  14  School  of  Mines  Quarterly,  8  (1893). 

4»  Ries'  Economic  Geology  of  the  U.   S.  240,  241. 

BO  Lakes'  Prospecting  for  Gold  and  Silver  (3d  Ed.)  91. 

6i  Lakes'  Prospecting  for  Gold  and  Silver  (3d  Ed.)  75. 

52  Lakes'  Prospecting  for  Gold  and  Silver  (3d  Ed.)  73,  74. 

63  See  1  Chamberlain  &  Salisbury,  Geology,  461,  for  the  reason  for  this. 


124 


DEFINITIONS   OF   MINING   LAW   TERMS. 


(Ch.  9 


FIGURE  Mo.  3. 


Metalliferous  veins  exposed  to  view  near  Howardsville,  San  Juan,  Colorado,  show- 
ing two  systems  of  fissure  veins  crossing  each  other. 


the  ore  has  been  deposited  in  the  pores  of  the  rock,  or  the  crevices  of 
a  breccia,54  (Keweenaw  Point,  Mich.)  'Fahlband'  is  a  belt  of  schist  im- 
pregnated with  sulphides.  Ore  channels  include  those  'ore  bodies' 
formed  along  some  path  which  the  mineral  solutions  could  easily 

e*  Country  rock  shattered  into  small  angular  fragments.  The  name  "brec- 
cia" is  usually  applied  to  a  number  of  such  small  pieces  of  country  rock, 
which  the  process  of  vein  formation  has  left  unconsumed  in  the  vein  mat- 


§  33)  VEIN   OR   LODE   OF   ROCK   IN   PLACE.  125 

follow,  as  the  boundary  between  two  different  kinds  of  rock  (Leadville 
Colo.;  Mercur,  Utah).  'Bedded  deposits/  found  parallel  with  the 
stratification  of  sedimentary  rocks,  and  sometimes  of  contemporaneous 
origin  (Clinton  iron  ore).  'Contact  deposits/  as  now  understood,  rep- 
resent ore  bodies  formed  along  the  contact  of  a  mass  of  igneous  and 
sedimentary  rock  (usually  calcareous),  the  ore  having  been  derived 
wholly  or  in  part  from  the  intrusive  mass  (Clifton,  Ariz.,  in  part). 
'Chamber  deposits/  whose  ore  has  been  deposited  in  caves  of  solution 
(Missouri  lead  and  zinc  ores).  'Disseminations/  deposits  in  which  the 
ore  is  disseminated  through  the  rock  (southeastern  Missouri  lead 
ores)."  " 

The  Miner's  Conception  of  Veins. 

So  much  for  the  geology  of  veins.  It  was  early  pointed  out,  how- 
ever, that,  while  the  miner  regarded  as  veins  all  that  the  geologists 
did,  he  also  gave  the  term  a  more  liberal  interpretation,  and  that  the 
mining  acts  adopted  the  miner's  point  of  view  in  talking  of  veins,  lodes, 
or  ledges.  "These  acts,"  said  Mr.  Justice  Field  in  the  Eureka  Case, 
"were  not  drawn  by  geologists  or  for  geologists.  They  were  not  fram- 
ed in  the  interests  of  science,  and  consequently  with  scientific  accuracy 
in  the  use  of  terms.  They  were  framed  for  the  protection  of  miners 
in  the  claims  which  they  had  located  and  developed,  and  should  receive 
such  a  construction  as  will  carry  out  this  purpose."  56  Under  the  min- 
ing acts  the  words,  "lode,"  "vein,"  and  "ledge"  all  mean  the  same 
thing.  "Ledge"  is  a  term  used  in  California  and  Nevada.  Mr.  Lind- 
ley  suggests  that  "of  the  three  terms,  the  word  'lode'  is  the  more 
comprehensive.  A  lode  may,  and  often  does,  contain  more  than  one 
vein."  67  And  Messrs.  Morrison  and  De  Soto  think  that  "vein"  is 
broader  than  "lode,"  because  "the  word  'vein'  is  universally  used  to 
include  coal  and  other  flat  nonmetallic  deposits,  while  the  word  'lode' 

ter.    Pieces    which,    if    small,    would    be    called    breccia,    are,    when    large 
enough,  called  "horses."    Lakes'  Prospecting  for  Gold  and  Silver  (3d  Ed.)  73. 
"The  rock  in  which  a  vein  is  found  is  called  the  "country  rock';    e.  g., 
limestone,    granite,    porphyry."    Id.   86. 

55  Ries'  Economic  Geology  of  the  U.  S.  241,  242. 

56  EUREKA  CONSOL.  MIN.  CO.  v.  RICHMOND  MIN.  CO.,  4  Sawy.  302, 
311,  Fed.  Gas.  No.  4,548,  affirmed  in  Richmond  Min.  Co.  v.  Eureka  Consol. 
Min.  Co.,  103  U.  S.  839,  26  L.  Ed.  557,  560. 

57  l  Lindley  on  Mines  (2d  Ed.)  §  290,  citing  United  States  v.  Iron  Silver 
Min.  Co.,  128  U.  S.  673,  680,  9  Sup.  Ct.  195,  32  L.  Ed.  571.     It  should  be  no- 
ticed,  however,   that  practical   miners  often  use  the  word   "lode"   to  mean 
the  whole  mining  claim  or  lode  location  (Buckeye  Min.  &  Mill.  Go.  v.  Carlson, 
16  Colo.  App.  446,  66  Pac.   168),  a  use  to  which  they  never  put  the  word 
"vein,"  and  that  lode  was  probably  used  in  that  sense  in  the  passage  from 
United  States  v.  Iron  Silver  Min.  Co.,  supra,  on  which  Mr.  Lindley  relies. 


126  DEFINITIONS   OF   MINING   LAW   TERMS.  (Ch.  9 

is  not  so  used."  58     But  all  authorities  agree  that  the  terms,  however 
differently  shaded  in  meaning  in  popular  use,  are  legal  equivalents. 

The  first  thing  to  realize  is  that  "many  definitions  of  veins  have 
been  given,  varying  according  to  the  facts  under  consideration.  The 
term  is  not  susceptible  of  an  arbitrary  definition  applicable  to  every 
case.  It  may  be  controlled,  in  a  measure,  at  least,  by  the  conditions  of 
locality  and  deposit."  59  And  the  second  thing  to  notice  is  that  some 
courts  have  been  willing  to  follow  the  Eureka  Case  idea  that  anything 
is  a  lode  which  a  miner  would  be  justified  in  following  to  find  ore,60 
while  other  courts  have  inclined  toward  the  geologists'  point  of  view.61 
Finally,  whether  there  is  in  the  given  case  a  vein  or  lode  is  always  a 
question  of  fact,62  and  the  determination  of  that  question  is  affected  by 
the  rights  asserted  by  the  parties  and  the  order  of  time  in  which  those 
rights  arise.63 

Legal  Definitions  of  Veins. 

The  way  to  ascertain  the  legal  notion  of  a  vein  is  to  take  various 
definitions  that  have  been  given.  In  Iron  Silver  Mining  Co.  v.  Chees- 
man,  it  is  stated  by  Mr.  Justice  Miller,  for  the  United  States  Supreme 
Court,  that  "what  constitutes  a  lode  or  vein  of  mineral  matter  has 
been  no  easy  thing  to  define.  In  this  court  no  clear  definition  has 
been  given.  Mr.  Justice  Field,  in  the  Eureka  Case,  4  Sawy.  302,  311, 
Fed.  Cas.  No.  4,548,  shows  that  the  word  is  not  always  used  in  the 
same  sense  by  scientific  works  on  geology  and  mineralogy  and  by  those 
engaged  in  the  actual  working  of  mines."  64 

ss  Morrison's  Min.  Rights  (13th  Ed.)  162.  "Coal  bed"  was  held  to  be 
synonymous  with  "coal  vein"  in  Delaware,  L.  &  W.  R.  Co.  v.  Gleason  (C. 
C.  A.)  159  Fed.  383. 

59  Beals  v.  Cone,  ,27  Colo.  473,  62  Pac.  948,  83  Am.  St.  Rep.  92. 

eo  See  Harrington  v.  Chambers,  3  Utah,  94,  1  Pac.  362;  Hayes  v.  Lavag- 
nino,  17  Utah,  185,  53  Pac.  1029  (but  see  Grand  Cent.  Min.  Co.  v.  Mammoth 
Min.  Co.,  29  Utah,  490,  83  Pac.  648,  677,  that  this  is  true  only  where  the 
question  of  a  discovery  of  a  vein  is  involved,  and  not  where  the  question  is 
one  of  extralateral  rights) ;  Burke  v.  McDonald,  3  Idaho  (Hash.)  1296, 
29  Pac.  98.  See  Shoshone  Min.  Co.  v.  Rutter,  87  Fed.  801,  31  C.  C.  A.  223. 

ei  See  Stinchfield  v.  Gillis,  96  Cal.  33,  30  Pac.  839,  adopting  definition  of 
Judge  Sawyer  in  Jupiter  Min.  Co.  v.  Bodie  Consol.  Min.  Oo.  (C.  C.)  11 
Fed.  675. 

62  Bluebird  Min.   Co.  v.  Largey  (C.  C.)  49  Fed.  289,  stating  properly  that 
the  question  of  what  is  the  apex  of  a  vein  is  also  a  question  of  fact.     That 
the  latter  question  should  be  submitted  to  a  jury,  see  Campbell  v.  Golden 
Cycle  Min.  Co.,  141  Fed.  610,  615,  73  C.  C.  A.  260. 

63  See  MIGEON  v.  MONTANA  CENT.  R.  CO.,  77  Fed.  249,  254,  23  C.  C. 
A.  156. 

64  IRON  SILVER  MIN.  CO.  V.  CHEESMAN,   116  U.   S.  529,  533,  6  Sup. 
Ct.  481,  29  L.  Ed.  712. 


§  33)  VEIN    OR   LODE   OF   ROCK   IN   PLACE.  127 

In  that  very  case,  however,  the  Supreme  Court  adopted  the  charge 
to  the  jury  given  by  Judge  Hallett  on  the  trial,  viz.:  "To  determine 
whether  a  lode  or  vein  exists  it  is  necessary  to  define  those  terms,  and, 
as  to  that,  it  is  enough  to  say  that  a  lode  or  vein  is  a  body  of  mineral, 
or  mineral-bearing  rock,  within  defined  boundaries  in  the  general  mass 
of  the  mountain.  In  this  definition  the  elements  are  the  body  of  miner- 
al or  mineral-bearing  rock  and  the  boundaries.  With  either  of  these 
things  well  established,  very  slight  evidence  may  be  accepted  as  to  the 
existence  of  the  other.  A  body  of  mineral  or  mineral-bearing  rock  in 
the  general  mass  of  the  mountain,  so  far  as  it  may  continue  unbroken 
and  without  interruption,  may  be  regarded  as  a  lode,  whatever  the 
boundaries  may  be.  In  the  existence  of  such  body,  and  to  the  extent  of 
it,  boundaries  are  implied.  On  the  other  hand,  with  well-defined  bound- 
aries, very  slight  evidence  of  ore  within  such  boundaries  will  prove  the 
existence  of  a  lode.  Such  boundaries  constitute  a  fissure,  and  if  in 
such  fissure  ore  is  found,  although  at  considerable  intervals  and  in 
small  quantities,  it  is  called  a  lode  or  vein.  *  *  *  Reverting  to  that 
definition,  if  there  is  a  continuous  body  of  mineral  or  mineral-bearing 
rock  extending  from  one  claim  to  the  other,  it  must  be  that  there  are 
boundaries  to  such  body  and  the  lode  exists ;  or  if  there  is  a  continuous 
cavity  or  opening  between  dissimilar  rocks,  in  which  ore  in  some  quan- 
tity and  value  is  found,  the  lode  exists.  These  propositions  are  cor- 
relative and  not  very  different  in  meaning,  except  that  the  first  gives 
prominence  to  the  mineral  body  and  the  second  to  the  boundaries. 
Proof  of  either  proposition  goes  far  to  establish  a  lode,  and  it  may  be 
said  that  without  proof  of  one  of  them  a  lode  cannot  exist.  *  *  * 
Excluding  the  wash,  slide,  or  debris  on  the  surface  of  the  mountain,  all 
things  in  the  mass  of  the  mountain  are  in  place.  A  continuous  body 
of  mineral  or  mineral-bearing  rock,  extending  through  loose  and  dis- 
jointed rocks,  is  a  lode  as  fully  and  certainly  as  that  which  is  found 
in  more  regular  formation ;  but  if  it  is  not  continuous,  or  is  not  found 
in  a  crevice  or  opening  which  is  itself  continuous,  it  cannot  be  called 
by  that  name.  In  that  case  it  lacks  the  individuality  and  extention 
which  is  an  essential  quality  of  a  lode  or  vein."  65  And  Mr.  Justice 
Miller,  in  approving  the  charge,  said :  "Certainly  the  lode  or  vein  must 
be  continuous,  in  the  sense  that  it  can  be  traced  through  the  surrounding 
rocks,  though  slight  interruptions,  of  mineral-bearing  rock  would  not  be 
alone  sufficient  to  destroy  the  identity  of  the  vein.  Nor  would  a  short 
partial  closure  of  the  fissure  have  that  effect,  if  a  little  farther  on  it  re- 

es  iron  Silver  Min.  Co.  v.  Cheesman,  116  U.  S.  529,  536,  537,  6  Sup.  Ct  485, 
29  L,  Ed.  712. 


128  DEFINITIONS   OF   MINING    LAW   TERMS.  (Ch.  £ 

curred  again  with  mineral-bearing  rock  within  it.66  And  such  is  the 
idea  conveyed  in  the  previous  part  of  the  charge."  6T 

The  reason  why  the  Supreme  Court  of  the  United  States  has  beer 
content  to  approve  as  occasion  required  the  definitions  of  veins  framec 
by  other  courts  is  "that  the  definition  of  a  lode  must  always  have  spe- 
cial reference  to  the  formation  and  peculiar  characteristics  of  the  par- 
ticular district  in  which  the  lode  or  vein  is  found."  68  What  may  be  z 
vein  for  one  purpose  and  with  reference  to  one  party  may  not  be  « 
vein  for  another  purpose  and  with  reference  to  a  differently  situatec 
party.69  In  the  case  of  United  States  v.  Iron  Silver  Mining  Co.,  Mr 
Justice  Field,  for  the  court,  said  of  lodes  in  placers :  "By  veins  or  lodes 
as  here  used,  are  meant  lines  or  aggregations  of  metal  imbedded  ii 
quartz  or  other  rock  in  place.  The  terms  are  found  together  in  th< 
statutes,  and  both  are  intended  to  indicate  the  presence  of  metal  ii 
rock.  Yet  a  lode  may  and  often  does  contain  more  than  one  vein.  Ii 
Iron  Silver  Mining  Co.  v.  Cheesman,  116  U.  S.  529,  533,  6  Sup.  Ct 
481,  29  L,.  Ed.  712,  a  definition  of  a  lode  is  given,  so  far  as  it  is  prac 
ticable  to  define  it  with  accuracy,  and  it  is  not  necessary  to  repeat  it."  7 

Eureka  Consol.  Mining  Co.  v.  Richmond  Mining  Co.71  is  the  clas 
sic  case  on  the  definition  of  a  lode  or  vein.  But  the  Utah  court  ha 
given  more  briefly  the  essential  conclusions  of  that  case  as  follows 
"Looking  at  the  above,  and  other  evidence  in  the  record  of  like  import 
from  a  strictly  scientific  view,  it  probably  would  not  show  the  existeno 
of  a  vein  or  lode  within  the  limits  of  the  claim.  Geologists,  when  ac 
curately  speaking,  apply  the  terms  'vein'  and  'lode'  to  a  fissure  in  th< 
earth's  crust  filled  with  mineral  matter.  In  Von  Cotta's  treatise  01 
Ore  Deposits  (Prime's  Translation,  §  16)  the  author  says:  'Vein; 
are  aggregations  of  mineral  matter  in  fissures  of  rocks.  Lodes  ar< 
therefore  aggregations  of  mineral  matter  containing  ores  in  fissures. 
Similar  definitions  have  been  given  by  Dana,  Steele,  and  others.  It  wil 
thus  be  noticed  that,  in  the  judgment  of  a  geologist,  a  fissure  or  fractur* 
in  the  earth's  crust  seems  to  be  an  essential  element  in  the  definitioi 


ee  See  Cheesman  v.  Shreeve  (C.  C.)  40  Fed.  787,  792-796. 

er  IRON  SILVER  MIN.  CO.  v.  CHEESMAN,  116  U.  S.  529,  538,  6  Sup.  Ct 
481,  29  L.  Ed.  712.  The  definition  of  Judge  Hallett  was  further  approvec 
in  IRON  SILVER  MIN.  CO.  v.  MIKE  &  STARR  GOLD  &  SILVER  MIN 
CO.,  143  U.  S.  394,  404,  12  Sup.  Ct.  543,  36  L.  Ed.  201. 

68MIGEON  v.  MONTANA  CENT.  R.  CO.,  77  Fed.  249,  255,  23  C.  C.  A 
156.  See  Book  xr.  Justice  Min.  Co.  (C.  C.)  58  Fed.  106,  121. 

es  See  GRAND  CENT.  MIN.  CO.  v.  MAMMOTH  MIN.  CO.,  29  Utah,  490 
83  Pac.  648;  Tabor  v.  Dexler,  9  Morr.  Min.  Rep.  614,  Fed.  Cas.  No.  13,723 

70  United  States  v.  Iron  Silver  Min.  Co.,  128  U.  S.  673,  679,  9  Sup.  Ct 
195,  32  L.  Ed.  571. 

Ti4  Sawy.  302,  Fed.   Cas.  No.  4,54a 


§  33)  VEIN   OR   LODE   OF   ROCK   IN   PLA 


of  either  of  these  terms.  If,  therefore,  the  vali< 
cation,  when  assailed,  were  to  be  tested  strictly 
it  would  doubtless  be  incumbent  upon  the  locatoi 
location  was  made  upon  a  fissure  with  well-defined  walls  on  each  side 
and  filled  with  metalliferous  matter.  That  many  mining  claims,  the 
locations  of  which  have  never  been  questioned,  could  not  withstand 
such  a  test,  cannot  be  doubted.  The  practical  miner  has  paid  little 
attention  to  scientific  definitions  of  these  terms.  As  to  the  term  'lode/ 
it  has  been  said  that  the  miners  made  the  first  definition,  and  that,  as 
used  by  them,  before  defined  by  any  authority,  it  simply  meant  what- 
ever they  could  follow,  expecting  to  find  ore — that  formation  by  which 
a  miner  could  be  led  or  guided.  This  is  implied  by  its  derivation ;  the 
term  being  a  variation  of  the  verb  'lead/  The  word  'vein'  with  the 
miner  means  practically  the  same  thing.  By  him  the  two  terms  are 
used,  interchangeably  or  together,  to  mean  some  formation  within 
which,  or  following  which,  he  can  find  ore,  and  outside  of  which  he 
cannot  expect  to  find  it.  The  fissure,  therefore,  and  its  walls,  are  of 
importance,  in  the  business  of  mining,  only  as  defining  the  boundaries 
within  which  miners  may  reasonably  expect  to  find  ore.  Doubtless,  in 
practical  mining,  the  terms  'vein'  and  'lode'  apply  to  all  deposits  of 
mineralized  matter  within  any  zone  or  belt  of  mineralized  rock  sepa- 
rated from  the  neighboring  rock  by  well-defined  boundaries,  and  the 
discoverer  of  such  a  deposit  may  locate  it  as  a  vein  or  lode.  We  ap- 
prehend that  the  several  acts  of  Congress  relating  to  mining  locations 
were  enacted  for  the  protection  of  the  miners,  and  that  the  terms 
'vein'  and  'lode'  were  employed  in  the  sense  in  which  they  had  used 
them,  uncontrolled  by  scientific  definitions.  The  act  of  July  26,  1866, 
provided  for  the  procuring  of  a  patent  by  any  person  or  association 
of  persons  claiming  a  'vein,  or  lode  of  quartz  or  other  rock  in  place, 
bearing  gold,  silver,  cinnabar,  or  copper/  The  act  of  May  10,  1872, 
speaks  of  'veins  or  lodes  of  quartz  or  other  rock  in  place,  bearing 
gold,  silver,  cinnabar,  lead,  tin,  copper/  and  other  valuable  deposits. 
No  definitions  of  the  terms  'vein'  and  'lode'  are  given  in  either  of  the 
acts,  and,  from  the  fact  that  cinnabar  and  lead  ores  are  included,  it 
would  seem  that  it  was  not  the  intention  of  the  framers  of  the  acts 
that  purely  scientific  definitions  should  be  applied  in  giving  them  effect ; 
for  it  is  not  a  characteristic  of  cinnabar  that  it  is  found  in  fissures 
of  the  earth's  crust,  or  in  veins  or  lodes  as  defined  by  geologists.  It 
occurs  generally  in  fibrous  or  amorphous  masses  bedded  in  shales  or 
slate  rock.  So  lead  is  frequently  found  between  strata  in  flat  cavi- 
ties, in  beds  within  sandstones  and  rudimentary  limestones — formations 
which  would  not  answer  to  veins  or  lodes,  when  speaking  with  scientif- 
ic accuracy.  A  definition  of  'vein'  or  'lode'  which  would  exclude  any 
COST.MIN.K— n 


130  DEFINITIONS   OF   MINING   LAW   TERM*.  (Cll.  9 

one  of  the  metals  mentioned  would,  with  reference  to  those  enactments, 
be  defective;  and  its  application,  in  interpretation,  would  not  be  in 
harmony  with  the  spirit  and  intent  manifest  from  contexts.  Evidently 
these  laws  were  not  enacted  in  the  interests  of  science,  but  for  the 
purpose  of  protecting  the  rights  of  miners  as  to  their  mining  claims 
located  and  developed,  and  therefore  should  be  construed  with  such 
liberality  as  to  effectuate  that  purpose,  and  protect  miners  as  to  their 
mining  claims  located  upon  any  kind  of  vein  or  lode  of  quartz  or 
other  rock  in  place,  bearing  any  of  the  metals  named  in  the  acts,  re- 
gardless of  the  kind  or  character  of  rock  or  formation  in  which  the 
mineral  may  have  been  found.  The  fact  that  the  terms  Vein'  and 
'lode'  have  been  used  by  the  legislators  in  connection  with  each  other 
is  suggestive  that  Congress  intended  to  avoid  any  limitation  in  the  ap- 
plication of  the  acts  which  might  be  imposed  by  a  scientific  definition 
of  either  term.  Mr.  Justice  Field,  in  the  Eureka  Case,  4  Sawy.  302, 
Fed.  Cas.  No.  4,548,  after  discussing  the  term  'lode'  as  used  in  scientific 
works  and  in  the  acts  of  Congress,  said:  'It  is  difficult  to  give  any 
definition  of  the  term,  as  understood  and  used  in  the  acts  of  Congress, 
which  will  not  be  subject  to  criticism.  A  fissure  in  the  earth's  crust, 
an  opening  in  its  rocks  and  strata  made  by  some  force  of  nature,  in 
which  the  mineral  is  deposited,  would  seem  to  be  essential  to  the  defini- 
tion of  a  'lode/  in  the  judgment  of  geologists.  But  to  the  practical 
miner  the  fissure  and  its  walls  are  only  of  importance  as  indicating  the 
boundaries  within  which  he  may  look  for,  and  reasonably  expect  to 
find,  the  ore  he  seeks.  A  continuous  body  of  mineralized  rock  lying 
within  any  other  well-defined  boundaries  on  the  earth's  surface,  and 
under  it,  would  equally  constitute,  in  his  eyes,  a  lode.  We  are  of 
opinion,  therefore,  that  the  term,  as  used  in  the  acts  of  Congress,  is 
applicable  to  any  zone  or  belt  of  mineralized  rock  lying  within  boundar- 
ies clearly  separating  it  from  the  neighboring  rock.'  It  would  seem, 
from  these  considerations,  that  any  deposit  of  mineral  matter,  or  in- 
dication of  a  vein  or  lode,  found  in  a  mineralized  zone  or  belt  within 
defined  boundaries,  which  a  person  is  willing  to  spend  his  time  and 
money  to  follow  in  expectation  of  finding  ore,  is  the  subject  of  a  valid 
location,  and  that,  when  metallic  vein  matter  appears  at  the  surface, 
a  valid  location  of  a  ledge  deep  in  the  ground,  to  which  such  vein 
matter  leads,  may  be  made."  72 

The  argument  drawn  from  the  use  of  "cinnabar"  in  the  mining , 
acts,  first  advanced  in  the  Eureka  Case,  and  repeated  in  Hayes  v. 
Lavagnino,  does. not  seem  to  Mr.  Lindley  to  have  much  weight.     He 

72  HAYES  v.  LAVAGNINO,  17  Utah,  194-197,  53  Pac.   1029. 


§  33)  VEIN   OR   LODE   OF   ROCK   IN   PLACE.  131 

says:  "It  is  not  likely,  therefore,  that  the  inclusion  of  cinnabar  with 
gold  and  silver  in  the  act  was  based  upon  any  very  clear  conception 
of  its  mode  of  occurrence.  However,  as  we  understand  the  matter 
now,  the  typical  cinnabar  deposits  are  in  fact  fissured,  fractured,  and 
mineralized  zones,  formed  in  a  way  somewhat  similar  to  the  more 
complex  of  the  gold,  silver,  copper,  and  lead  bearing  lodes.  They  were 
probably  regarded  as  lodes  by  the  miner.  There  may  be  differences  of 
opinion  among  scientists  regarding  the  proper  place  for  these  de- 
posits in  a  system  of  classification;  but  that  is  a  matter  of  little 
moment  here.  They  have  become  'lodes'  in  the  eye  of  the  law.  Be 
that  as  it  may,  the  miner  first  applied  the  terms  'lode'  and  Vein,'  and 
they  had  with  him  a  definite  meaning.  Whether  it  accorded  with 
scientific  theories  and  abstractions  is,  at  this  late  date,  at  least,  of  no 
serious  moment."  7S 

It  is  apparent  that  a  lode  is  differentiated  from  mere  impregna- 
tions of  mineral.  "A  lead  or  lode,"  said  the  Montana  court,  "is 
not  an  imaginary  line  without  dimensions.  It  is  not  a  thing  with- 
out shape  or  form;  but  before  it  can  legally  and  rightfully  be  de- 
nominated a  lead  or  lode  it  must  have  length,  width,  and  depth. 
It  must  be  capable  of  measurement.  It  must  occupy  defined  space 
and  be  capable  of  identification."  74  In  the  case  of  a  broad  vein, 
with  no  distinct  hanging  wall,  but  with  a  distinct  and  persistent 
foot  wall,  a  United  States  Circuit  Court  has  said:  "To  hold  that  the 
ledge  extends  to  the  extreme  limits  of  all  evidence  of  mineraliza- 
tion is  not  a  reasonable  or  practical  proposition  in  such  a  formation 
as  this.  If  not,  where  then?  Not  beyond  the  ore  deposit  line,  or 
where  such  strong  indications  of  it  are  found  that  the  miner  would 
work  or  explore  with  the  expectation  of  compensation.  It  cannot  be 
doubted  from  the  evidence  that,  far  beyond  the  line  where  any  miner 
acquainted  with  the  formation  would  look  for  ore,  there  is  much  evi- 
dence of  mineralized  rock,  quite  similar  to  the  material  recognized 
as  clearly  within  the  ledge."  75  As  the  Utah  court  has  recently  said: 
"But  if,  on  the  other  hand,  the  rock  of  the  district  generally  carries 
values,  then  undoubtedly  the  values  in  the  vein  material,  where  the 
boundaries  of  the  vein  are  not  well  or  not  at  all  defined,  either  in  the 
surface  or  at  depth,  should  be  in  excess  of  those  of  the  country  rock, 
else  there  can  be  no  line  of  demarkation,  nor  where  the  rock  is  gen- 

« 1  Lindley  on  Mines  (2d  Ed.)  §  289. 

7*Foote  v.  National  Min.  Co.,  2  Mont.  402. 

"BUNKER  HILL  &  SULLIVAN  MINING  &  CONCENTRATING  CO. 
v.  EMPIRE  STATE  IDAHO  MINING  &  DEVELOPING  CO.,  134  Fed. 
268,  270. 


132  DEFINITIONS   OF   MINING   LAW   TERMS.  (Ch.  9 

erally  broken,  shattered  and  fissured,  anything  to  separate  it  from  the 
adjacent  country."  76 

An  impregnation  of  minerals,  therefore,  which  is  not  in  excess  of 
that  found  in  the  ordinary  country  rock  of  the  district,  does  not  es- 
tablish a  vein;  but,  if  an  impregnation  greater  than  that  of  the  sur- 
rounding country  rock  is  found,  then  it  will  be  a  vein  or  lode  if  it  is 
in  the  general  mass  of  the  mountain,  for  its  boundaries  can  be  ascer- 
tained by  assay  and  analysis.  As  Judge  Hallett  said  in  Hyman  v. 
Wheeler:  "An  impregnation,  to  the  extent  to  which  it  may  be  traced 
as  a  body  of  ore,  is  as  fully  within  the  broad  terms  of  the  act  of  Con- 
gress as  any  other  form  of  deposit.  *  *  *  It  is  true  that  a  lode 
must  have  boundaries ;  but  there  seems  to  be  no  reason  for  saying  that 
they  must  be  such  as  can  be  seen.  There  may  be  other  means  of  deter- 
mining their  existence  and  continuance,  as  by  assay  and  analysis."  7T 
And  in  approving  the  above  definition  the  Colorado  court  said:  "The 
controlling  characteristic  of  a  vein  is  a  continuous  body  of  mineral- 
bearing  rock  in  place,  in  the  general  mass  of  the  surrounding  forma- 
tion. If  it  possesses  these  requisites,  and  carries  mineral  in  appreciable 
quantities,  it  is  a  mineral-bearing  vein,  within  the  meaning  of  the  law, 
even  though  its  boundaries  may  not  have  been  ascertained."  7S 

There  are  other  definitions  of  veins,  and  some  of  them  will  have 
to  be  stated  when  we  consider  questions  of  discovery,  known  lodes  in 
placers,  extralateral  rights,  etc.;  but  for  our  present  purpose  the 
foregoing  are  enough.79 

"Rock  in  Place." 

And  now  for  the  phrase  "veins  or  lodes  of  quartz  or  other  rock  in 
place."  80  The  first  thing  to  notice  is  that  it  is  the  quartz  or  rock 
that  must  be  "in  place."  The  vein  or  lode  necessarily  is  in  place  before 

7  e  GRAND  CENT.  MIN.  CO.  v.  MAMMOTH  MIN.  CO.,  29  Utah,  490, 
83  Pac.  648,  678. 

77  HYMAN  v.  WHEELER  (C.  C.)  29  Fed.  347,  354. 

78Beals  v.  Cone,  27  Colo.  473,  486,  62  Pac.  948,  83  Am.  St.  Rep.  92. 

7»  For  other  definitions,  see  Webb  v.  American  Asphaltum  Min.  Co.,  157 
Fed.  203,  84  C.  O.  A.  673 ;  Stevens  v.  Williams,  Fed.  Gas.  No.  13,414 ;  North 
Noonday  Min.  Co.  v.  Orient  Min.  £o.  (C.  C.)  1  Fed.  522,  6  Sawy.  299;  Jupi- 
ter Mm.  Co.  v.  Bodie  Consol.  Min.  Co.  (C.  C.)  11  Fed.  666,  7  Sawy.  96; 
Book  v.  Justice  Min.  Co.  (C.  C.)  58  Fed.  106;  Consolidated  Wyoming  Gold 
Min.  Co.  v.  Champion  Min.  Co.  (C.  O.)  63  Fed.  540;  Gregory  v.  Pershbaker, 
73  Cal.  109,  14  Pac.  401;  Buffalo  Zinc  &  Copper  Co.  v.  Crump,  70  Ark. 
525,  69  S.  W.  572,  91  Am.  St.  Rep.  87.  For  a  full  land  department  discus- 
sion of  veins,  see  Henderson  v.  Fulton,  35  Land  Dec.  Dep.  Int.  652.  For 
a  case  where  there  were  held  to  be  two  parallel  veins,  instead  of  one,  see 
Waterloo  Min.  Co.  v.  Doe,  82  Fed.  45,  27  C.  C.  A.  50. 

so  Rey.  St.  United  States,  §§  2320,  2329  (U.  S.  Comp.  St.  1901,  pp.  1424, 
1432). 


§  33)  VEIN   OR   LODE   OF   ROCK   IN   PLACE.  133 

it  can  be  said  to  be  a  vein  or  lode.  "In  place,"  in  the  above  statutory 
phrase,  has  reference  to  the  contents  of  the  vein  or  lode,  though  this 
fact  is  often  forgotten.  A  vein  or  lode  must  be  in  place  to  be  a  vein 
or  lode,  and  it  is  only  the  contents  or  filling  of  the  vein  which  the 
statute  requires  to  be  "in  place."  When  it  is  said,  however,  that  the 
contents  of  the  vein  or  lode  must  be  in  place,  it  is  not  meant  that  they 
must  be  in  a  solid  mass.  In  Stevens  v.  Williams,  Miller,  J.,  stated  that : 
"I  want  to  say  that  by  rock  in  place  I  do  not  mean  merely  hard  rock, 
merely  quartz  rock,  but  any  combination  of  rock,  broken  up,  mixed 
up  with  minerals  and  other  things,  is  rock  within  the  meaning  of  the 
statute."81  So  in  Tabor  v.  Dexter,  Judge  Hallett  stated  that :  "Wheth- 
er the  ore  is  loose  and  friable,  or  very  hard,  if  the  inclosing  walls  are 
country  rock,  it  may  be  located  as  a  vein  or  lode.  But  if  the  ore  is 
on  top  of  the  ground,  or  has  no  other  covering  than  the  superficial  de- 
posit, which  is  called  alluvium,  diluvium,  drift,  or  debris,  it  is  not  a 
lode  or  vein  within  the  meaning  of  the  act,  which  may  be  followed  be- 
yond the  lines  of  the  location.  In  this  bill  it  is  alleged  that  the  over- 
lying material  is  boulders  and  gravel,  which  cannot  be  in  place  as  re- 
quired by  the  act.  *  *  *  For  the  decision  of  this  motion  [for 
preliminary  injunction]  it  is  enough  to  say  that  where  the  mass  over- 
lying the  ore  is  a  mere  drift,  or  loose  deposit,  the  ore  is  not  in  place 
within  the  meaning  of  the  act.  Upon  principles  recently  explained,  a 
location  on  such  a  deposit  of  ore  may  be  sufficient  to  hold  all  that 
lies  within  the  lines;  but  it  cannot  give  a  right  to  ore  in  other  ter- 
ritory, although  the  ore  body  may  extend  beyond  the  lines."82  So  in 
Burke  v.  McDonald  the  court  said :  "It  must  be  remembered  that  every 
seam  or  crevice  in  the  rock,  even  though  filled  with  clay,  earth,  or 
rock,  does  not  constitute  a  vein,  nor  every  ridge  of  stained  rock  its 
cropping;  nor,  on  the  contrary,  is  it  required  that  well-defined  walls 
shall  be  developed  or  paying  ore  found  within  them.  But  something 
must  be  found  in  place,  as  rock,  clay,  or  earth,  so  colored,  stained, 
changed,  and  decomposed  by  the  mineral  elements  as  to  mark  and 
distinguish  it  from  the  inclosing  country."  83 

It  was  in  regard  to  the  blanket  deposits  at  Leadville,  Colo.,  that  the 
question  about  lodes  being  in  place  became  important ;  and  even  there 
"in  place"  was  not  important  because  of  that  statutory  provision,  but 
because  a  vein,  to  be  a  vein  at  all,  as  contrasted  with  a  placer  deposit, 
must  be  in  place.  In  Leadville  Mining  Co.  v.  Fitzgerald,84  Judge 

si  STEVENS  v.   WILLIAMS,   1   McCrary,   480,   Fed.   Gas.    No.    13,413. 
82  TABOR  T.   DEXTER  9  Morr.  Min.  Rep.  614,  Fed.  Cas.  No.  13,723. 
"  Burke  v.   McDonald,  2  Idaho  (Hasb.)  679,  33-  Pac.  49. 
s*  LEADVILLE  MIN.  CO.  v.  FITZGERALD,  4  Morr.  Min.  Rep.  380,  381, 
386,  Fed.  Cas.  No.  8,158. 


134  DEFINITIONS   OF   MINING    LAW   TERMS.  (Ch.  9 

Hallett  indirectly  shows  that  the  idea  that  a  vein  or  lode  must  be  em- 
braced in  the  mass  of  the  mountain,  an  idea  which  he  originated  85 
and  which  certainly  seems  thoroughly  sound,  arose  from  his  miscon- 
ception that  the  words  "in  place"  referred  to  vein  or  lode,  instead  of 
referring  to  the  contents  of  the  vein  or  lode.  He  said,  when  discus- 
ing  the  motion  for  an  injunction :  "Until  the  discovery  of  mineral 
deposits  near  Leadville,  no  controversy  had  arisen  in  this  state  as  to 
whether  a  lode  or  vein  is  in  place  within  the  meaning  of  the  act  of  Con- 
gress. The  mines  opened  in  Clear  Creek,  Gilpin,  Boulder,  and  other 
counties  descend  into  the  earth  so  directly  that  no  question  could  arise 
as  to  whether  they  were  inclosed  in  the  general  mass  of  the  country. 
Whatever  the  character  of  the  vein,  and  whatever  its  width,  it  was  sure 
to  be  within  the  general  mass  of  the  mountain ;  but  the  Leadville  de- 
posits were  found  to  be  of  a  different  character.  In  some  of  them,  at 
least,  the  ore  was  found  on  the  surface,  or  covered  only  by  the  super- 
ficial mass  of  slide,  debris,  detritus,  or  movable  stuff,  which  is  dis- 
tinguishable from  the  general  mass  of  the  mountain,  while  others 
were  found  beneath  an  overlying  mass  of  fixed  and  immovable  rock 
which  could  be  called  a  wall  as  well  as  that  which  was  found  below 
them.  It  then  becomes  necessary  to  consider  very  carefully  the  mean- 
ing of  the  words  "in  place"  in  the  act  of  Congress,  in  order  to  deter- 
mine whether  these  deposits  were  of  the  character  described  in  that 
act.  Section  2320  of  the  Revised  Statutes  (U.  S.  Comp.  St.  1901,  p. 
1424)  refers  to  veins  and  lodes  in  'rock  in  place,'  and  of  course  no 
other  can  be  brought  within  the  terms  of  the  act.  After  careful  con- 
sideration, it  was  thought  that  a  vein  or  lode  could  not  be  in  place  with- 
in the  meaning  of  the  act  unless  it  should  be  within  the  general  mass  of 
the  mountain.  It  must  be  inclosed  by  or  held  within  the  general  mass 
of  fixed  and  immovable  rock.  It  is  not  enough  to  find  the  vein  or  lode 
lying  on  the  top  of  fixed  or  immovable  rock;  for  that  which  is  top 
is  not  within,  and  that  which  is  without  the  rock  in  place  cannot  be 
said  to  be  within  it."86  And  again  in  charging  the  jury  he  said: 
"As  to  the  first  question,  if  the  lode  is  in  the  general  mass  of  the 
mountain,  as  distinguished  from  the  slide,  debris,  or  'tumble  stuff/  of 
the  surface,  it  is  in  place  within  the  meaning  of  the  act  of  Congress. 
If  the  rock  above  the  lode  is  in  its  original  position,  although  some- 
what broken  and  shattered  by  the  movement  of  the  country  or  other 
cause,  it  is  in  place.  And  in  this  kind  of  deposits  it  may  be  said  that 

85  STEVENS  v.  WILLIAMS,  1  Morr.  Min.  Rep.  558,  559,  560,  Fed.  Gas. 
No.  13,413 ;  Stevens  v.  Gill,  1  Morr.  Min.  Rep.  576,  580,  Fed.  Oas.  No.  13,398 ; 
Iron  Silver  Min.  Co.  v.  Cheesman  (C.  C.)  8  Fed.  299,  301. 

8«  LEADVILLE  MIN.  CO.  v.  FITZGERALD,  4  Morr.  Min.  Rep.  380, 
381,  Fed.  Gas.  No.  8,158. 


§  34)  A   PLACER.  135 

the  lode  is  in  place  wherever  the  rock  above  is  in  place.  *  *  *  If 
the  principal  part  of  the  rock  above  the  mineral  is  in  its  original  posi- 
tion according  to  the  present  structure  of  the  mountain,  the  lode  is  in 
place,  although  some  masses  of  rock  or  boulders  may  be  associated 
with  the  ore."  87 

Even  though  the  misconception  of  the  statute  caused  the  holding 
that  the  vein  must  be  in  the  mass  of  the  mountain  to  be  a  vein,  that 
holding  is  well  established  and  certainly  furnishes  the  only  sound 
way  in  which  to  distinguish  between  veins  and  placers.88  It  is  also 
highly  important  in  the  working  out  of  extralateral  rights;  for,  be- 
cause of  the  great  interference  of  extralateral  rights  with  common- 
law  notions  of  ownership  of  land,  only  well-defined  and  continuous 
veins  are  deemed  within  the  statute  awarding  extralateral  rights  to  the 
owner  of  an  apex.89  Before  we  define  "apex"  and  "extralateral 
rightsx"  however,  we  must  distinguish  between  "lodes"  and  "placers." 

A  PLACER. 
34.   A  placer  is  any  form  of  mineral  deposit  other  than  a  vein  or  lode. 

Now  what  is  a  placer?  Messrs.  Morrison  and  De  Soto  have  this  to 
say  about  the  matter:  "As  commonly  and  properly  understood,  a 
'placer  claim'  means  a  location  in  which  gold  is  found  loose  in  sand  or 
gravel,  and  not  in  the  vein  or  in  place.  It  includes  gulch  claims,  old 
channels,  cement,  and  drift  diggings.  But  the  United  States  Mining 
acts  make  an  arbitrary  division  of  all  minerals  into  two  classes,  to 
wit,  'lodes'  and  'placers/  All  deposits  of  (metallic)  minerals  in  place 
are  called,  when  located,  'lode  claims/  and  all  deposits  of  other  min- 
erals, in  place  or  not  in  place,  are  'placers.'  "  90  Under  the  United 
States  mining  acts,  therefore,  a  placer  is  any  form  of  mineral  deposit 
"excepting  veins  of  quartz  or  other  rock  in  place."  91  And  by  the 

87  Leadville  Min.  Co.  v.  Fitzgerald,  4  Morr.  Min.  Rep.  386,  Fed.  Cas.  No. 
8,158.  Compare  Iron  Silver  Min.  Co.  v.  Cheesman  (C.  C.)  8  Fed.  297,  2 
McCrary,  191. 

ss  "A  lode  is  a  zone,  belt,  or  body  of  quartz  or  other  rock  lodged  in  the 
earth's  crust,  and  presenting  two  essential  and  inherent  characteristics, 
namely:  (1)  It  must  be  held  'in  place'  within  or  by  the  adjoining  country 
rock;  and  (2)  it  must  be  impregnated  with  some  of  the  minerals  or  valuable 
deposits  mentioned  in  the  statute."  Meydenbauer  v.  Stevens  (D.  C.)  78 
Fed.  787. 

s » GRAND  CENT.  MIN.  CO.  v.  MAMMOTH  MIN.  CO.,  29  Utah,  490,  83 
Pac.  648;  Butte  &  B.  Min.  Co.  v.  Societe  Anonyme  des  Mines  de  Lexington, 
23  Mont.  117,  58  Pac.  Ill,  75  Am.  St.  Rep.  505. 

»o  Morrison's  Mining  Rights  (13th  Ed.)  210.  The  idea  here  expressed,  that 
only  metallic  deposits  in  place  are  lodes,  seems  unsound.  Webb  v.  American 
Asphaltum  Min,  Co.,  157  Fed.  203,  84  C.  C.  A.  651. 

»iRev.    St.   U.    S.    §   2329   (U.    S.   Comp.    St.    1901,    p.    1432);    Gregory    v. 


136  DEFINITIONS   OF   MINING    LAW   TERMS.  (Ch.  9 

term  "placer  claim,"  as  used  in  the  section  of  the  statutes  in  regard 
to  patenting  lodes  in  placer  claims,92  "is  meant  ground  within  denned 
boundaries  which  contains  mineral  in  its  earth,  sand,  or  gravel  ;  ground 
that  includes  valuable  deposits  not  in  place  —  that  is,  not  fixed  in  rock 
—  but  which  are  in  a  loose  state,  and  may  in  most  cases  be  collected  by 
washing  or  amalgamation  without  milling."  93 

Ordinarily  there  is  little  difficulty  in  discriminating  veins  from  placer 
deposits,*  yet  the  case  of  Gregory  v.  Pershbaker  9*  is  an  instance  of  a 
troublesome  situation.  This  case  had  to  deal  with  what  are  known 
in  California  as  "deep  placers,"  namely,  the  sandy  or  gravelly  beds  or 
bottoms  of  ancient  streams  long  since  covered  over  by  lava.  "These 
gravel  beds,"  said  Mr.  Lindley,  "lie  upon  a  'bed  rock/  which  at  some 
period  of  geological  history  formed  the  bed  of  an  ancient  river.  They 
are  usually  immediately  overlain  by  a  formation  of  clay  gouge,  and 
on  this  clay  covering  is  a  capping  of  lava,  sometimes  hundreds  of  feet 
in  thickness.  These  subterranean  deposits  are  reached  by  means  of 
tunnels  to  the  bed  rock,  and  thence  following  the  meanderings  of  the 
channel.  These  deposits  certainly  occupy  a  fixed  position  in  the  mass 
of  the  mountain,  although  they  do  not  fall  within  the  popular  defini- 
tion of  lodes  or  veins.  The  land  department  at  an  early  period  classi- 
fied them  as  'placers,'  and  patents  have  uniformly  been  issued  upon 
location  of  this  class  of  deposits  made  under  the  placer  laws."  95  The 
California  court,  being  called  upon  to  deal  with  such  a  deposit,  said 
that  the  definition  of  a  lode  in  the  Eureka  Case98  (namely,  that  the 
term  is  applicable  to  any  zone  or  belt  of  mineralized  rock  lying  within 
boundaries  clearly  separating  it  from  neighboring  rock)  would  not 
include  a  bed  of  gravel  from  which  particles  of  gold  may  be  washed. 
"The  words  'mineralized  rock/  "  said  the  court,  "were  evidently  in- 
tended to  qualify  the  *  *  *  sentence.  That  which  in  the  Eureka 
Case  was  declared  to  be  a  'lode'  was  a  zone  of  limestone  lying  between 
a  wall  of  quartz  and  a  seam  of  clay  or  shale  ;  the  ore  having  a  dip  of 


Pershbaker,  73  Cal.   109,  14  Pac.  401;    Webb  v.  American  Asphaltum 
Co.,  157  Fed.  203,  84  C.   C.  A.  673. 

»2  Rev.  St.  U.  S.  §  2333  (U.  S.  Comp.  St.  1901,  p.  1433). 

»3  United  States  v.  Iron  Silver  Min.  Co.,  128  U.  S.  673,  679,  9  Sup.  Ct 
195,  32  L.  Ed.  571. 

*  Yet  recently  a  United  States  court  has  had  to  decide  that  gilsonite 
and  the  harder  forms  of  asphaltum  in  veins  or  lodes  of  rock  in  place  may 
be  located  as  lodes,  and  may  not  be  located  as  placer  deposits.  Webb  v. 
American  Asphaltum  Min.  Co.,  157  Fed.  203,  84  C,  C.  A.  651. 

e*73  Cal.  109,  14  Pac.  401. 

OBI  Lindley  on  Mines  (2d  Ed.)   §  427. 

964  Sawy.  302,  Fed.  Gas.  No.  4,548. 


§  35)  APEX   OP   A   VEIN.  137 

45°  and  the  other  of  80°."  97  And  the  court  therefore  insisted  that 
a  bed  of  gravel  from  which  particles  of  gold  may  be  washed,  even 
though  that  bed  is  between  an  underlying  bed  of  slate  rock  and  an 
overlying  bed  of  lava  rock,98  and  even  though  the  gravel  is  of  a  hard 
nature,  and  in  mining  and  extracting  the  same  has  to  be  detached  from 
its  position  by  the  use  of  picks  and  gads,"  is  not  a  lode,  because  it 
is  not  mineralized  rock  in  place,  and  is  within  the  definition  of  placers 
in  section  2329,  Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901,  p.  1432)  which 
declares  all  forms  of  deposit,  excepting  veins  of  quartz  or  other  rock 
in  place,  to  be  placers.  The  court  added :  "Referring  to  the  common 
use  of  the  word  by  miners,  to  the  dictionaries,  and  to  the  adjudications 
of  courts,  the  gravel  bed  with  gold  therein  as  described  in  the  finding 
is  a  placer."  10° 

The  deposit  in  Gregory  v.  Pershbaker  was  so  hard  as  to  require 
the  use  of  a  pick  and  gad  to  extract,  so  could  properly  be  called  min- 
eralized rock,  and  it  certainly  occupied  a  fixed  position  in  the  mass  of 
the  mountain.  But  for  the  peculiar  geological  formation  noted  above, 
and  which  properly  governed  the  California  court,  the  deposit  should 
have  been  held  to  be  a  lode.  That  is  clear  from  Jones  v.  Prospect 
Mountain  Tunnel  Co.  101  In  that  case,102  a  ledge,  consisting  of  "broken 
limestone,  boulders,  low-grade  ore,  gravel,  and  sand,  which  appear^ 
ed  to  have  been  subjected  to  the  action  of  the  water,"  and  "found 
at  a  depth  of  several  hundred  feet,  and  where  there  seems  to  have  been 
no  question  that  it  was  within  the  original  and  unbroken  mass  of  the 
mountain,"  was  held  by  the  court  to  be  mineral  matter  "in  place." 

THE  APEX  OF  A  VEIN. 

35.    The  apex  of  a  vein  is  the  width  and  length— i.  e.,  the  surface— of 
its  upper  edge. 

In  connection  with  veins  it  is  important  to  define  the  apex  of  a 
vein,  its  dip,  and  its  course  or  strike.  Though  there  is  a  controversy 
as  to  whether  the  law  of  the  apex  was  properly  applied  in  Duggan  v. 
Davey,103  there  is  no  question  that  "apex"  was  clearly  defined  in  that 

97  GREGORY  v.  PERSHBAKER,  73  Cal.  109,  114,  14  Pac.  401. 
9873  Cal.  109,  111,  14  Pac.  401. 
9973  Cal.  113,  14  Pac.  401,  402. 
10073  Cal.  115,  14  Pac.  401,  403. 
10121  Nev.  339,  31  Pac.  642. 

102  JONES  v.   PROSPECT  MOUNTAIN  TUNNEL  CO.,  21  Nev.  339,  351, 
31    Pac.    642. 

103  4  Dak.  110,  26  N.  W.  887. 


138  DEFINITIONS   OF   MINING    LAW   TERMS.  (Ch.   D 

case.104  It  need  only  be  premised  that  under  the  federal  statutes  the 
owner  of  a  claim  which  has  the  apex  of  a  vein  or  lode  inclosed  within 
the  parallel  end  lines  of  the  claim  has  the  right  to  follow  the  vein  down 
in  the  earth  as  far  as  it  goes,  even  if  in  going  down  it  departs  from  his 
common-law  boundaries  and  enters  what  at  common  law  would  be  his 
neighbor's  grounds,  so  long  as  he  does  not  go  beyond  planes  drawn 
through  the  extralateral  right  end  lines  and  extended  in  their  own 
direction.  As  the  apex  right  is  only  to  go  outside  one's  side  bound- 
aries, it  has  come  to  be  called  the  "extralateral  right."  The  extra- 
lateral  right  depending  on  the  ownership  of  the  apex  of  the  vein  or 
lode,  the  question  is:  What  is  the  apex  of  a  vein  or  lode?  Duggan 
v.  Davey  has  this  to  say  about  it: 

"Secondly.  Is  the  top  or  apex  of  this  vein  or  lode  within  the  lines 
of  the  Sitting  Bull  location  ?  The  definition  of  the  top  or  apex  of  a  vein 
usually  given  is:  'The  end  or  edge  of  a  vein  nearest  the  surface.' 
And  to  this  definition  the  defendants  insist  we  must  adhere  with  ab- 
solute literal  and  exclusive  strictness,  so  that  wherever,  under  any 
circumstances,  an  edge  of  a  vein  can  be  found  at  any  surface,  regard- 
less of  all  other  circumstances,  that  is  to  be  considered  as  the  top  or 
apex  of  the  vein.  The  extent  to  which  this  view  was  carried  by  the 
defendants,  and,  I  must  confess,  its  logical  results,  were  exhibited 
by  Prof.  Dickerman,  their  engineer,  who,  replying  to  an  inquiry  as 
to  what  would  be  the  apex  of  a  vein  cropping  out  at  an  angle  of  one 
degree  from  the  vertical  on  a  perpendicular  hillside,  and  cropping  out 
also  at  a  right  angle  with  that  along  the  level  summit  of  the  hill,  stat- 
ed that  in  his  opinion  the  whole  line  of  that  outcrop  from  the  bottom 
clear  over  the  hill,  as  far  as  it  extended,  would  be  the  apex  of  the 
vein.  Some  other  witnesses  had  a  similar  opinion.  The  definition 
given  is  no  doubt  correct  under  most  circumstances,  but,  like  many 
other  definitions,  is  found  to  lack  fullness  and  accuracy  in  special 
cases ;  and  I  do  not  think  important  questions  of  law  are  to  be  de- 
termined by  a  slavish  adherence  to  this  letter  of  an  arbitrary  defini- 
tion. It  is,  indeed,  difficult  to  see  how  any  serious  question  could  have 
arisen  as  to  the  practical  meaning  of  the  terms  'top'  or  'apex' ;  but  it 
seems  in  fact  to  have  become  somewhat  clouded.  I  apprehend,  if  any 
intelligent  person  were  asked  to  point  out  the  top  or  apex  of  a  house, 
a  spire,  a  tree,  or  hill,  he  would  have  no  difficulty  in  doing  so;  and 
I  do  not  see  why  the  same  common  sense  should  not  be  applied  to  a 

104  Mr.  Snyder  says  that  in  DUGGAN  v.  DAVEY,  4  Dak.  110,  26  N.  W. 
887,  the  court  misapplied  the  law  through  faultless  reasoning  from  false 
premises.  1  Snyder  on  Mines,  §  802.  Mr.  Lindley,  however,  with  what 
seems  to  the  writer  sound  exposition  and  argument,  approves  the  decision. 
1  Lindley  on  Mines  (2d  Ed.)  §  310. 


§  35)  APEX    OF   A   VEIN.  139 

vein  or  lode.  Statutory  words  are  to  receive  their  ordinary  meaning 
and  interpretation,  except  where  shown  to  have  a  special  meaning; 
and,  as  I  think  the  testimony  shows  that  these  terms  were  unknown 
to  miners  in  their  application  to  veins  before  the  statute,  the  ordinary 
rule  would  seem  to  apply  to  them.  Justice  Goddard,  a  jurist  of  ex- 
perience in  mining  law,  in  his  charge  to  the  jury  in  the  case  of  Iron 
Silver  v.  Louisville,  defines  'top'  or  'apex'  as  the  highest  or  terminal 
point  of  a  vein,  where  it  approaches  nearest  the  surface  of  the  earth, 
and  'where  it  is  broken  on  its  edge,  so  as  to  appear  to  be  the  beginning 
or  end  of  the  vein.'  Chief  Justice  Beatty  of  Nevada,  who  is  men- 
tioned in  the  report  of  the  Public  Land  Commission  of  1878-80,  as 
'one  of  the  ablest  jurists  who  has  administered  the  mining  law,'  in  his 
letter  to  that  commission  says,  after  defining  dip  and  course  of  strike : 
'The  top  or  apex  of  any  part  of  a  vein  is  found  by  following  the  line 
of  its  dip  up  to  the  highest  point  at  which  vein  matter  exists  in  the  fis- 
sure.' According  to  this  definition  the  top  or  apex  of  a  vein  is  the 
highest  part  of  a  vein  along  its  entire  course.  If  the  vein  is  supposed 
to  be  divided  into  sections  by  vertical  planes  at  right  angles  to  the 
strike,  the  top  or  apex  of  each  section  is  the  highest  part  of  the  vein 
between  the  planes  that  bound  that  section ;  but,  if  the  dividing  planes 
are  not  vertical  or  not  at  right  angles  to  a  vein  which  departs  at  all 
from  the  perpendicular  in  its  downward  course,  then  the  highest  part 
of  the  vein  between  such  planes  will  not  be  the  top  or  apex  of  the 
section  which  they  include/ 

"I  am  aware  that  in  several  adjudged  cases  'top'  or  'apex'  and 
'outcrop'  have  been  treated  as  syonymous,  but  never,  so  far  as  I  am 
aware,  with  reference  to  a  case  presenting  the  same  features  as  the 
present.  The  word  'apex'  ordinarily  designates  a  point,  and,  so  con- 
sidered, the  apex  of  the  vein  is  the  summit,  the  highest  point  in  the 
vein  in  the  ascent  along  the  line  of  its  dip  or  downward  course,  and 
beyond  which  the  vein  extends  no  further,  so  that  it  is  the  end,  or, 
reversely,  the  beginning,  of  the  vein.  The  word  'top,'  while  including 
'apex,'  may  also  include  a  succession  of  points — that  is,  a  line — so 
that  by  the  top  of  a  vein  would  be  meant  the  line  connecting  a  succes- 
sion of  such  highest  points  or  apices,  thus  forming  an  edge."105 

Conceiving  a  vein  or  lode  to  be  an  intrusive  sheet  of  mineralized 
matter  of  varying  thickness  found  in  the  mass  of  the  mountain,  the 
apex  of  a  vein  is  thus  seen  to  be  that  edge  of  the  sheet  which  shows 
on  the  surface  of  the  location,  or  is  nearest  to  the  surface.  It  is  not 
a  point,  though  apex  naturally  suggests  point.  It  is  not  a  line,  though 

105DTJGGAN  v.  DAVBY,  4  Dak.  110,  139-143,  26  N.  W.  887. 


140  DEFINITIONS   OF   MINING   LAW   TERMS.  (Cll.  9 

it  has  the  full  extension  of  the  upper  edge  of  the  lode.108  It  is  the 
whole  surface  of  the  upper  edge  of  the  vein,  with  all  the  width  and 
length  which  that  edge  has.  That  is  what  the  Dakota  court  means 
when  it  says  that  "the  top  or  apex  of  a  vein  is  the  highest  part  of  a 
vein  along  its  entire  course.107 


THE  "COURSE"  OR  "STRIKE"  OF  A  VEIN. 

36.  The  course  or  strike  of  a  vein  means  either  the  length  of  the  apex 

or  the  direction  taken  by  the  length  of  the  apex. 

The  "course"  or  "strike"  of  a  vein  is  its  continuous  apex;  that  is, 
the  path  of  the  apex  across  the  country,  if  the  apex  outcrops,  or  the 
wandering  direction  taken  by  that  apex  underground,  if  it  does  not 
outcrop.  The  mining  law  acts  are  not  concerned  with  the  true  strike 
of  a  vein  or  lode — i.  e.,  with  the  direction  which  would  be  taken  by  the 
apex  if  the  vein  were  cut  along  its  entire  length  by  a  horizontal 
plane108 — for  they  are  talking  about  that  "course  of  the  vein"  (the 
word  "strike"  does  not  appear  in  the  mining  acts  at  all)  which  a  miner 
can  have  some  hope  of  ascertaining.f  They  mean  by  the  "course" 
of  a  vein  either  the  length  of  that  upper  part  of  the  vein  which  is 
known  as  the  apex,  or  else  the  direction  in  which  that  length  lies. 

THE   "DIP"   OF  A  VEIN. 

37.  The  dip  of  a  vein  is  its  departure  from  either  the  perpendicular 

or  the  horizontal  in  its  descent  into  the  earth,  and  is  usually 
computed  in  its  variation  from  the  horizontal. 

loe  But  see  LARKIN  v.  UPTON,  144  U.  S.  19,  12  Sup.  Ct.  614,  36  L.  Ed. 
330,  stating  that  the  apex  is  often  a  line  of  great  length.  A  mathematical 
line  is  not  meant,  however. 

107  DUGGAN  v.  DAVEY,  4  Dak.  110,  141,  26  N.  Wl  887.  See  Stevens  v. 
Williams,  1  McCrary,  480,  Fed.  Cas.  No.  13,413;  Id.,  Fed.  Gas.  No.  13,414; 
Iron  Silver  Mining  Co.  v.  Murphy  (D.  C.)  3  Fed.  368. 

los  See  Duggan  v.  Davey,  4  Dak.  110,  143,  26  N.  W.  887;  Flagstaff  Silver 
Mining  Co.  v.  Tarbet,  98  U.  S.  463,  25  L.  Ed.  253 ;  Grand  Cent.  Min.  Co.  v. 
Mammoth  Min.  Co.,  29  Utah,  490,  83  Pac.  648. 

t  "Perhaps  the  true  course  of  a  vein  should  correspond  with  its  strike, 
or  the  line  of  a  level  through  it;  but  this  can  rarely  be  ascertained  until 
considerable  work  has  been  done,  and  after  claims  and  locations  have  be- 
come fixed.  The  most  practical  rule  is  to  regard  the  course  of  the  vein 
as  that  which  is  indicated  by  surface  outcrop,  or  surface  explorations  and 
workings.  It  is  on  this  line  that  claims  will  naturally  be  laid,  whatever  be 
the  character  of  the  surface,  whether  level  or  inclined."  Flagstaff  Silver 
Min.  Co.  v.  Tarbet,  98  U.  S.  463,  at  pages  469,  470,  25  L.  Ed.  253. 


§  37)  THE    <4DIP"  OF   A   VEIN.  141 

The  "dip"  of  a  vein  is  the  extent  to  which  the  vein,  in  its  de- 
scent into  the  earth,  departs  from  the  perpendicular,  and  it  departs 
from  that  perpendicular  whenever  it  has  any  departure  from  the  hor- 
izontal plane  other  than  the  direct  perpendicular.  In  Stevens  v.  Wil- 
liams Judge  Hallett  said:  "Now  it  was  said,  with  reference  to  the 
lode  which  is  now  in  litigation  here,  that  whenever,  in  its  departure 
from  the  vertical  course,  it  reaches  an  inclination  which  is  greater 
than  forty-five  degrees,  that  then  it  is  no  departure  from  the  perpen- 
dicular, but  from  a  horizontal  plane,  and  therefore  it  is  not  within 
the  terms  of  the  act.  That  position,  gentlemen,  is  merely  a  verbal 
distinction,  which  goes  for  nothing  at  all.  Of  course,  in  its  departure, 
it  may  depart  in  any  degree  up  to  the  horizontal  plane,  and  it  is  still 
a  departure  from  the  perpendicular  throughout  the  whole  course,  un- 
til it  comes  to  a  right  angle  from  the  perpendicular.  *  *  *  It  ap- 
pears to  be  exactly  within  the  provisions  of  this  act,  if  the  vein  clearly 
extends  outside  of  the  limits  of  the  surface  in  any  angle  between  the 
perpendicular  and  horizontal.  I  agree  that  if  we  should  ever  find  a  lode 
which  in  its  course  extends  precisely  on  the  plane  of  the  horizon,  and  it 
is  extremely  doubtful  whether  we  shall  ever  find  one  in  that  position, 
but  if  we  should  ever  find  a  lode  which  is  precisely  in  that  position, 
there  may  be  some  difficulty  in  locating  it  under  this  act."  10I> 

"Dip"  is  therefore  the  direction  taken  by  the  vein  as  it  goes  down 
into  the  earth,  where  there  is  a  departure  from  either  the  perpen- 
dicular or  the  horizontal.  It  also  seems  to  be  applicable  to  a  case 
where  the  vein  has  dipped  beneath  another's  mining  claim  and  then 
goes  down  straight;  the  owner  of  the  apex  being  still  regarded  as 
going  down  on  the  dip  when  he  is  going  down  straight.  However 
that  may  be,  there  is  no  legal  dip  unless  there  is  at  some  time  in  the 
vein's  descent  a  departure  both  from  the  horizontal  and  from  the  per- 
pendicular. That  explains  why  there  is  no  uniformity  in  the  method 
of  calculating  the  degree  of  dip.  Miners  generally  figure  the  degree 
of  dip  from  the  perpendicular,  but  surveyors  calculate  it  from  the 
horizontal.110  "A  vein  or  ore  deposit  will  not  infrequently  begin  with 
a  gentle  dip,  and  increase  rapidly  in  steepness  with  depth.  The  angle 
of  dip  is  usually  taken  from  its  variation  from  a  horizontal,  not  a 
perpendicular,  line.  Thus,  a  dip  of  75°  means  one  that  is  very  steep, 
while  one  of  10°  is  a  gentle  inclination."  1X1 

io»  Stevens  v.  Williams,  1  Morr.  Min.  Rep.  557,  563,  Fed.  Gas.  No. 
13,413. 

"•See  Morrison's  Mining  Rights  (13th  Ed.)  185. 
"i  Lakes'  Prospecting  for  Gold  and  Silver  (3d  Ed.)  87. 


DEFINITIONS   OF   MINING   LAW   TERMS.  (Ch.  9 


"MINING  CLAIM"   OR  "LOCATION." 

38.  While,  strictly,  location  is  the  act  of  creating  a  mining  claim, 
the  word  "location"  is  ordinarily  used  as  a  synonym  of  "min- 
ing claim".  A  mining  claim  is  a  part  of  the  public  mineral 
domain  appropriated  in  accordance  with  the  mining  law  for 
mining  purposes. 

"Mining  Claim"  or  "Location" 

There  are  some  other  terms  needing  preliminary  definition,  namely, 
"mining  claim,"  "location,"  and  "mine."  "Mining  claim"  and  "loca- 
tion" may  be  considered  together.  In  St.  Louis  Smelting  &  Refining 
Co.  v.  Kemp  the  court  said:  "The  difficulty  with  the  court  below,  as 
seen  in  its  charge,  evidently  arose  from  confounding  'location'  and 
'mining  claim/  as  though  the  two  terms  always  represent  the  same 
thing,  whereas  they  often  mean  different  things.  A  mining  claim  is 
a  parcel  of  land  containing  precious  metal  in  its  soil  or  rock.  A  loca- 
tion is  the  act  of  appropriating  such  parcel  according  to  certain  estab- 
lished rules.  It  usually  consists  in  placing  on  the  ground,  in  a  con- 
spicuous position,  a  notice  setting  forth  the  name  of  the  locator,  the 
fact  that  it  is  thus  taken  or  located,  with  the  requisite  description  of  the 
extent  and  boundaries  of  the  parcel,  according  to  the  local  customs, 
or,  since  the  statute  of  1872,  according  to  the  provisions  of  that  act. 
Rev.  St.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426).  The  location,  which  is 
the  act  of  taking  the  parcel  of  mineral  land,  in  time  became,  among  the 
miners,  synonymous  with  the  mining  claim  originally  appropriated. 
So  now,  if  the  miner  has  only  the  ground  covered  by  one  location,  'his 
mining  claim'  and  'location'  are  identical,  and  the  two  designations 
may  be  indiscriminately  used  to  denote  the  same  thing.  But  if  by 
purchase  he  acquires  the  adjoining  location  of  his  neighbor — ftiat  is, 
the  ground  which  his  neighbor  has  taken  up — and  adds  it  to  his  own, 
then  his  mining  claim  covers  the  ground  embraced  by  both  locations, 
and  henceforth  he  will  speak  of  it  as  his  'claim/  Indeed,  his  claim 
may  include  as  many  adjoining  locations  as  he  can  purchase,  and  the 
ground  covered  by  all  will  constitute  what  he  claims  for  mining  pur- 
poses, or,  in  other  words,  will  constitute  his  'mining  claim/  and  be  so 
designated.  .Such  is  the  general  understanding  of  miners  and  the 
meaning  they  attach  to  the  term."  112  So  in  McFeters  v.  Pierson  the 
court  said:  "The  term  'mining  claim/  meaning  a  parcel  of  mineral 
land  containing  precious  metals,  is  often  used  in  mining  parlance  as 
syonymous  with  the  term  'location/  which  means  the  act  of  appro- 

112  ST.  LOUIS  SMELTING  &  REFINING  CO.  T.  KEMP,  It4  TJ.  S.  636, 
648,  649,  26  L.  Ed.  313. 


§  39)  "MINE."  143 

priating  a  mining  claim  upon  the  public  domain  according  to  law  or 
established  rules.  St.  Louis  Smelting  &  Refining  Co.  v.  Kemp,  104 
U.  S.  648,  26  L.  Ed.  313."  113 

While,  strictly  and  literally,  location  is  the  act  of  locating,  rather 
than  the  result  of  doing  so,  it  still  remains  true  that  in  the  mining 
statutes  "location"  and  "mining  claim"  are  treated  as  synonymous.11* 
The  term  "claim"  as  applied  to  mining,  means  either  a  lode  or  placer 
location.116  Still,  as  the  court,  in  St.  Louis  Smelting  &  Refining  Co. 
v.  Kemp,  supra,  recognized,  "mining  claim"  often  means  to  miners 
a  group  of  mining  claims,116  a  point  in  which  it  resembles  the  word 
"mine."  117  Technically  "a  'mining  claim'  is  the  name  given  to  that 
portion  of  the  public  mineral  lands  which  the  miner  for  mining  pur- 
poses takes  up  and  holds  in  accordance  with  mining  laws,  local  and 
statutory.  It  must,  under  the  law  of  Congress  of  1872,  be  located  up- 
on at  least  one  known  vein  or  lode;  but  the  vein  or  lode  is  not  the 
whole  claim."  118  It  is  also  used  sometimes  to  mean  an  unpatented 
location,  as  distinguished  from  the  patented  location,  called  by  con- 
trast a  "mine."  119 

"MINE." 

39.   The  word  "mine,*'  because  of  the  various  meanings  given  to  it,  is 
to  be  avoided. 

The  word  "mine"  is  a  word  to  be  avoided,  because  of  its  complex 
meaning.  It  is  used  so  variously  that  it  cannot  be  used  safely  with- 
out coupling  with  it  each  time  a  statement  of  the  sense  intended.  The 
following  are  a  number  of  meanings  attached  to  the  word : 

(1)  The  word  "mine,"  in  its  primary  meaning,  seems  to  mean  an 

nsMcFETERS  v.  PIERSON,  15  Colo.  201,  203,  24  Pac.  1076,  22  Am.  St 
Rep.  388. 

114  DEL  MONTE  MINING  &  MILLING  CO.  v.  LAST  CHANCE  MIN- 
ING &  MILLING  CO.,  171  U.  S.  55,  74,  18  Sup.  Ct.  895,  43  L.  Ed.  72.  A 
contract  to  convey  a  mining  claim  implies  a  located  claim.  La  Grande 
Inv.  Co.  v.  Shaw,  44  Or.  416,  72  .Pac.  795,  74  Pac.  919. 

us  Sweet  v.  Weber,  7  Colo.  443,  449,  4  Pac.  752.  The  word  "lode"  is 
often  used  in  the  sense  of  "lode  mining  claim."  See  Buckeye  Min.  &  Mill. 
Co.  v.  Carlson,  16  Colo.  App.  446,  66  Pac.  168. 

no  See  Hamilton  v.  Delhi  Min.  Co.,  118  Cal.  148,  50  Pac.  378. 

117  Tredinnick  v.  Red  Cloud  Consolidated  Min.  Co.,  72  Cal.  78,  13  Pac. 
152;  Idaho  Min.  &  Mill.  Co.  v.  Davis,  123  Fed.  396,  59  C.  C.  A.  200;  Phil- 
lips v.  Salmon  River  Min.  &  Development  Co.,  9  Idaho,  149,  72  Pac.  886. 
See,  also,  "locations,"  Leet  v.  John  Dare  Silver  Min.  Co.,  6  Nev.  218. 

iisMt.  Diablo  Mill.  &  Min.  Co.  v.  Oallison,  5  Sawy.  439,  454,  Fed.  Cas. 
No.  9,886 ;  La  Grande  Inv.  Co.  v.  Shaw,  44  Or.  416,  72  Pac.  795,  74  Pac.  919. 

11 »  See  Bewick  v    Muir,  83  Cal.  368,  373,  23  Pac.  389,  390. 


144  DEFINITIONS   OF   MINING   LAW   TERMS.  (Ch.  9 

underground  excavation,  or,  rather,  all  the  underground  workings,  as 
distinguished  from  superficial  workings  or  quarries;120  but  that 
meaning  is  not  the  one  prevalent  in  the  United  States,  where  placer 
workings,  which,  except  in  the  case  of  deep  placers,  are  on  the  sur- 
face, are  always  called  "mines,"  121  and  where,  under  the  act  of  Con- 
gress ofx  August  4,  1872,  building  stone  lands  may  be  taken  up  as 
placers. 

(2)  The  word  "mine,"  as  the  meaning  just  given  has  suggested,  may 
mean  any  excavation  or  working  to  get  out  minerals.122 

120  "According  to  the  ordinary  sense  of  the  term  'mine,'  does  it  mean  a 
quarry?  I  apprehend  clearly  not.  The  meaning  of  the  term  does  not 
depend  on  the  nature  of  the  fossil  body  obtained.  It  depends  on  the  nature 
of  the  mode  of  working  it.  Some  mines  may  be  worked  by  means  of  min- 
ing, others  by  means  of  quarrying,  and  upon  the  case  here  shown  the  lime- 
stone was  worked  by  quarrying.  They  were  not  limestone  mines,  but  lime- 
stone quarries.  That  which  is  worked  by  mines  is  by  a  means  of  working 
in  which  the  surface  is  not  disturbed ;  and,  when  limestone  is  so  worked, 
then  it  is  a  limestone  mine.  It  is  clear  that  in  the  popular,  and  I  think  in 
the  just  and  accurate,  sense  of  the  distinction  between  mines  and  quarries, 
the  question  is  whether  you  are  working  so  as  to  remove  the  surface,  In- 
cluding, perhaps,  portions  of  the  lateral  surfaces,  so  as  not  to  leave  a 
roof.  Mining  is  when  you  begin  only  on  the  surface,  and  by  sinking  shafts, 
or  driving  lateral  drifts,  you  are  working  so  that  you  make  a  pit  or  a  tun- 
nel, leaving  a  roof  overhead."  Sir  R.  T.  Kindersley,  V.  C.,  in  Darvill  v. 
Roper,  3  Drewry,  294,  298,  299.  See  Rex  v.  Sedgley,  2  Barn.  &  Adol.  65; 
Rex  v.  Brettell,  3  Barn.  &  Adol.  424.  See  also  Marvel  v.  Merritt,  116  U. 
S.  11,  12,  6  Sup.  Ct.  207,  29  L.  Ed.  550,  approving  Webster's  definition,  dis- 
tinguishing between  mines  and  quarries.  » 

12127  Stat.  348,  c.  375  (U.  S.  Comp.  St.  1901,  p.  1434). 

122  "But  the  position  is  assumed  that  the  business  of  obtaining  this  ore 
is  not  mining,  as  it  is  not  conducted  underground,  but  on  the  surface.  It 
has  been  held  in  England,  under  their  tax  laws,  that  a  slate  work  is  not  a 
mine.  So  of  a  lime  work.  But  where  a  shaft  was  sunk,  and  limestone 
worked  out  underground,  held  to  be  a  mine.  So,  where  a  peculiar  clay 
was  obtained  in  like  manner,  held  to  be  a  clay  mine.  And  it  is  said  that 
the  expense  of  sinking  a  shaft  will  much  exceed  £5,000.  In  coming  to  these 
conclusions,  the  English  courts  doubtless  had  in  view  the  customs  of  their 
country.  Few,  if  any,  of  their  valuable  minerals  are  now  found  on  the 
surface  of  the  earth,  and  probably  never  were,  but  are  obtained  from  great 
depths,  and  are  generally  under  the  water  level.  On  the  contrary,  in  most 
parts  of  the  United  States,  the  iron  ore  is  obtained  on  or  near  the  surface, 
above  the  water  level,  and  is  worked  by  sunlight.  Such  is  also  the  case 
in  regard  to  coal  in  many  places,  whilst  in  others  shafts  are  sunk  to  a 
considerable  depth,  and  the  mineral  obtained  by  drifting,  as  mines  are 
worked  in  England.  But  few,  if  any,  of  these  shafts  cost  £5,000  to  sink. 
Our  idea  of  mining  is  derived  from  our  own  habits  and  customs.  Hence 
our  most  approved  lexicographer,  Webster,  says  that  a  mine  is  a  'pit  or 
excavation  in  the  earth  from  which  metallic  ore,  mineral  substances,  and 
other  fossil  bodies  are  taken  by  digging.'  *  *  *  And  Jacob's  Law  Dic- 
tionary, by  Tomlin,  says  that  'mines  are  quarries  or  places  whereout  any- 


§  39)  "MINE."  145 

(3)  The  word  "mine"  may  also  mean  the  veins  or  deposits  of  min- 
eral, rather  than  the  workings  to  get  at  them,  or  than  the  land  in 
which  they  are  found.123 

(4)  The  word  "mine"  is  used  to  designate  a  deposit  of  mineral  which 
has  been  opened  or  worked,  as  distinguished  from  one  which  has  been 
untouched.124 

(5)  The  word  "mine"  is  also  used  as  synonymous  with  that  sense, 
of  the  word  "mining  claims"  which  embraces  either  one  or  more  lo- 
cations.125 

(6)  The  word  "mine"  has  also  been  used  to  designate  patented  min- 
eral land,  as  distinguished  from  an  unpatented  location.126 

thing  is  dug.'  *  *  *  Barber's  Law  Dictionary  says:  'It  is  held  to  have 
the  sense  of  quarry.'  *  *  *  We  have  dwelt  more  particularly  on  this 
branch  of  the  case,  because  the  counsel  seemed  to  consider  that  much  de- 
pended on  establishing  that  taking  the  ore  from  the  mine  holes  described 
in  the  bill  and  answers  was  not  mining,  within  the  decisions  which  require 
an  account.  It  certainly  is  not  mining  under  the  English  tax  laws;  but 
to  us  it  appears  that  it  clearly  is  such,  under  the  decisions  requiring  an 
account  between  tenants  in  common."  Coleman  v.  Ooleman,  1  Pears.  (Pa.) 
470,  474,  475. 

128  Bullion  Beck  &  Champion  Min.  Co.  v.  Eureka  Hill  Min.  Co.,  5  Utah, 
3,  51,  11  Pac.  515,  523  (defining  "mine,"  as  used  in  the  act  of  1866,  as 
"synonymous  in  its  meaning  with  the  terms  'vein'  or  'lode' ") ;  Shaw  v. 
Wallace,  25  N.  J.  Law,  453,  469.  - 

124  Westemoreland  Coal  Co.'s  Appeal,  85  Pa.  344,  where  the  question  was 
as  to  waste  by  purchaser  from  a  tenant  for  life. 

125  Phillips  v.   Salmon   River  Min.   &  Development  Co.,  9  Idaho,   149,   72 
Pac.  886;    Tredinnick  v.  Red  Cloud  Consol.  Co.,  72  Cal.  78,  81,  13  Pac.  152, 
153;    Hamilton  v.  Delhi  Min.  Go.,   118  Cal.  148,  50  Pac.   378;    Idaho  Min. 
&  Mill.  Co.  v.  Davis,  123  Fed.  396,  59  C.  a  A,  200.     See  Smith  T.  Sherman 
Min.  Co.,  12  Mont.  524,  31  Pac.  72. 

126  FORBES  v.   GRACEY,   94  U.    S.   762,   766,   24  L.   Ed.    313,   where,  in 
speaking  of  a   Nevada  taxation   statute,   the  court  s«dd:     "The  use  of  the 
words    'mines   or   mining   claims'    is   evidently   intended   to   distinguish   be- 
tween the  cases  in  which  the  miner  is  the  owner  of  the  soil,  and  therefore 
has  perfect  title  to  the  mine,  and  those  in  which  the  miner  does  not  have 
title  to  the  soil,  but  works  the  mine  under  what  is     *     *     *     recognized  by 
the  act  of  Congress  as  a  mining  claim.     In  the  first  case  the  statute  makes 
the  tax  a  lien  on  the  mine,  because  the  title  to  the  mine  is  in  the  person 
who  owes  and  should  pay  the  tax.     In  the  other,  the  tax  is  a   lien  only 
on  the  claim  of  the  miner;    that  is,  on  his  possessory  rights  to  explore  and 
work   the   mine  under  the   existing   laws  and   regulations   on  the  subject." 
But  see  Bewick  v.   Muir,  83  Oal.  368,  372,  23   Pac.  389,   where  it  is  said: 
"The  words  'mining  claim,'  as  used  in  the  law  [a  mechanic's  lien  statute] 
have  no  reference  to  the  different  stages  in  the  acquisition  of  the  govern- 
ment title.     In  our  opinion,  it  includes  all  mines,  whether  the  title  is  in- 
choate, as  in  the  case  of  a  mining  claim  in  its  strict  sense,  or  perfect,  as 
in  the  case  of  a  fee-simple  title." 

COST.MIN.L.— 10 


146  DEFINITIONS   OF  MINING   LAW   TERMS.  (Ch.  9 

(7)  The  word  "mine"  is  also  used  among  miners  to  mean  a  paying 
mining  location,  as  contrasted  with  a  location  not  yet  demonstrated 
to  be  paying,  and  hence  known  as  a  "prospect." 

Upon  the  whole,  it  will  be  safer  and  better  always  to  use  the  term 
"mining  claim,"  ratker  than  "mine,"  and,  when  it  is  necessary  to  dis- 
criminate an  unpatented  claim  from  a  patented  one,  to  use  the  words 
"unpatented"  and  "patented." 


§§  40-41)  DISCO VEEY    OF   LODE  AND   PLACER   CLAIMS.  147 

CHAPTER  X. 
THE  DISCOVERY  OF  LODE  AND  PLACER  CLAIMS, 

40-43.  The  Discovery  of  Lode  Claims. 

44.  Pedis  Possessio. 

45.  The  Relation  Between  Discovery  and  Location. 

46.  The  Discovery  of  Placer  Claims. 

"No  location  of  a  mining  claim  shall  be  made  until  the  discovery 
of  the  vein  or  lode  within  the  limits  of  the  claim  located."  Rev. 
St.  U.  S.  §  2320  (U.  S.  Comp.  St.  1901,  p.  1424). 

THE  DISCOVERT  OF  LODE   CLAIMS. 

40.  Discovery  in  mining  is  essentially  the  same  thing  as  discovery 
elsewhere.  In  lode  mining  a  discovery  is  the  finding  of  a  vein 
or  lode  in  land  of  the  United  States  which  is  unappropriated 
and  which  may  be  located  under  the  mining  law.  It  exists  as 
effectually  where  a  prospector  notes  and  claims  a  vein  or 
lode  uncovered  by  a  previous  locator  and  abandoned  or  for- 
feited by  the  latter  as  it  does  where  the  prospector  is  the 
original  discoverer. 

41*  Whether  a  genuine  vein  has  actually  been  discovered  is  a  ques- 
tion of  fact  for  the  jury.  The  law  for  the  guidance  of  the 
jury  varies  slightly,  however,  according  as  the  dispute  over 
the  lode  arises  (a)  between  a  lode  claimant  and  a  subsequent 
lode  claimant;  (b)  between  a  lode  claimant  and  a  subsequent 
placer  claimant;  (c)  between  a  placer  claimant  and  a  subse- 
quent lode  claimant;  (d)  between  a  placer  claimant  and  a 
subsequent  placer  claimant  ;  (e)  between  mineral  claimants 
and  townsite  claimants;  or  (f)  between,  mineral  claimants  and 
agricultural  claimants. 

What  is  a  Discovery. 

In  lode  mining,  discovery  is  the  finding  of  a  vein  or  lode  which 
may  be  located.  Extracting  tons  of  float  from  the  claim  will  not 
make  a  discovery.  A  genuine  vein  or  lode  must  be  found.1  If  only 

i  Waterloo  Min.  Co.  v.  Doe  (C.  C.)  56  Fed.  685.  See  Overman  Silver 
Min.  Co.  v.  Corcoran,  15  Nev.  147;  Copper  Globe  Min.  Co.  v.  Allixtan,  23 
Utah,  410,  64  Pac.  1019.  But  see  Score  v.  Griffin  (Ariz.)  80  Pac.  331 ;  Reinor 
v.  Schroeder,  146  Cal.  411,  80  Pac.  517.  The  discovery  must  be  within  the  lim- 
its of  the  claim.  Michael  v.  Mills,  22  Colo.  439,  45  Pac.  429.  A  mere  guess 
will  not  serve  as  a  discovery.  Copper  Globe  Min.  Co.  v.  Allman,  supra.  "Dis- 
covery is  the  all-important  fact  upon  which  the  title  to  mines  depends." 
LAWSON  v.  UNITED  STATES  MINING  CO.,  207  U.  S.  1,  28  Sup.  Ct.  15,  19, 
52  L.  Ed.  . 


148  DISCOVERY   OF  LODE   AND   PLACER   CLAIMS.  (Ch.  10 

the  ore  exists  in  appreciable  quantities,  the  value  of  the  ore  is  relatively 
immaterial.  "When  the  locator  finds  rock  in  place  containing  mineral, 
lie  has  made  a  discovery,  within  the  meaning  of  the  statute,  whether 
the  rock  or  earth  is  rich  or  poor,  whether  it  assays  high  or  low.  It 
is  the  finding  of  the  mineral  in  the  rock  in  place,  as  distinguished 
from  float  rock,  that  constitutes  the  discovery,  and  warrants  the 
proprietor  in  making  a  location  of  a  mining  claim."  2 

It  is  not  necessary  that  the  locator  should  be  the  original  discov- 
erer,3 but  simply  that  he  should  find  the  vein  or  lode  when  it  is  in 
unappropriated  land  of  the  United  States.4  A  discovery  on  the 
dip  of  a  vein,  the  apex  of  which  has  already  been  located,  will  not 
support  a  location  of  the  dip  belonging  to  such  located  apex.5  Noting 
and  claiming  a  vein  or  lode  discovered  and  disclosed  to  view  by  a 

2  BOOK  v.   JUSTICE   MIN.   CO.    (C.   C.)   58  Fed.   106,    120.     See   Jupiter 
Min.  Co.  v.  Bodie  Consol.  Min.  Co.,  11  Fed.  666,  675,  676;    Moore  v.  Steel- 
smith,  1   Alaska,  121;    Meydenbauer  v.   Stevens   (D.   C.)   78  Fed.  787;    Mc- 
Shane  v.  Kenkle,  18  Mont.  208,  44  Pac.  979,  33  L.  R.  A.  851,   56  Am.  St 
Rep.  579 ;    Fox  v.  Myers  (Nev.)  86  Pac.  793 ;    Score  v.  Griffin  (Ariz.)  80  Pac. 
331.    The  vein  need  not  contain  ore  in  paying  quantities,  as  long  as  enough 
ore  is  found  to  warrant  a  prudent  man  in  spending  time  and  money  on  it. 
MULDRICK   v.   BROWN,  37  Or.    185,   61   Pa-c.   428;    Charlton  v.   Kelly,   2 
Alaska,    532.     Where   there    is   evidence   that   gold    has    been   found   within 
a  claim,  and  the  question  is  whether  such  finding  amounts  to  a  discovery, 
the  locator  is  entitled  to  show  the  situation,  character,  value,  and  miner- 
alogical  conditions  of  adjacent  claims,  and  to  follow  that  evidence  up  with 
expert  testimony  to  show  that  he  is  justified  in  expending  time  and  money 
in  prospecting,  developing  the  ground,  and  so  has  made  a  discovery.    Cas- 
caden  v.  Bortolis  (C.  C.  A.)  162  Fed.  267. 

3  JUPITER   MIN.    CO.   v.    BODIE   CONSOL.    MIN.    CO.    (C.    O.)    11    Fed. 
666,  7  Sawy.  96;    BOOK  v.  JUSTICE  MIN.  CO.  (C.  C.)  58  Fed.  106;    Wen- 
ner  v.   McNulty,   7  Mont.   30,   14  Pac.   643;    Hayes  v.  Lavagnino,   17  Utah, 
185,  53  Pac.  1029;    Willeford  v.  Bell  (Cal.)  49  Pac.  6. 

4  Lands   below  ordinary   high  tide   on   the   ocean,   arms   of  the   sea,    and 
navigable   rivers   in  Alaska   are   not  subject  to   location   under  the  mining 
laws.     Alaska  Gold  Min.  Co.  v.   Barbridge,  1  Alaska,  311;    Heine  v.  Roth, 
2  Alaska,  416.     James  W.  Logan,  29  Land  Dec.  Dep.  Int.  395.     For  a  sim- 
ilar holding  as  to  land  below  the  high-water  mark  of  the  Missouri  river, 
see  Argillite  Ornamental  Stone  Co.,  29  Land  Dec.  Dep.  Int.  585. 

6  Bunker  Hill  &  Sullivan  Mining  &  Concentrating  Co.  v.  Shoshone  Min. 
Co.,  33  Land  Dec.  Dep.  Int.  142.  That  a  discovery  and  location  only  on 
the  dip  of  the  vein,  but  made  prior  to  discovery  and  location  of  the  apex, 
will  be  upheld,  is  stated  in  VAN  ZANDT  v.  ARGENTINE  MIN.  CO.  (C.  O.1, 
8  Fed.  725.  Compare  Hope  Min.  Go.  v.  Brown,  7  Mont.  550,  19  Pac.  218. 
But  "it  is  unquestioned  law  that  the  top  or, apex  of  a  vein  must  be  within 
the  boundaries  of  the  claim  in  order  to  enable  the  locator  to  perfect  his 
location  and  obtain  title."  LARKIN  v.  UPTON,  144  U.  S.  19,  at  page  21, 
12  Sup.  Ct.  614,  36  L.  Ed.  330.  Unless  a  location  is  on  the  apex  of  a  vein, 
it  is,  of  course,  without  extralateral  right  IRON  SILVER  MIN.  CO.  v. 
MURPHY  (D.  C.)  3  Fed.  368. 


§§  40-41)  DISCOVERY   OF  LODE   CLAIMS.  149 

previous  prospector,  who  has  abandoned  or  forfeited  it,  and  adopting 
the  discovery  as  one's  own,  is  making  a  discovery.6  That  the  dis- 
covery is  underground  and  secret  is  immaterial,  if  it  is  followed  in 
proper  time  by  the  requisite  acts  of  location  on  the  surface;7  and, 
as  we  shall  see  later,  a  discovery  of  a  blind  vein  in  a  statutory  tun- 
nel probably  need  not  be  followed  by  acts  of  location  on  the  surface 
unless  a  patent  is  desired,8  or  unless  questions  of  extralateral  rights 
are  sought  to  be  simplified  by  a  surface  location.9  Whether  a  vein 
or  lode  ha,s  actually  been  discovered  is  a  question  of  fact  for  the  ju- 
ry.10 Only  one  location  can  be  based  on  one  discovery.11 

Discovery  as  Affected  by  Parties  Between  Whom  Question  Arises. 

What  is  a  vein  or  lode  for  discovery  purposes  often  depends  some- 
what upon  the  situation  of  the  parties  between  whom  the  question 

«  Hayes  v.  Lavagnino,  17  Utah,  185,  53  Pac.  1029.  But  there  can  be  no 
location  on  a  discovery  within  the  limits  of  an  existing  valid  location, 
OWILLIM  v.  DONNELLAN,  115  U.  S.  45,  5  Sup.  Ct.  1110,  29  L.  Ed.  348; 
except  where  the  new  location  is  made  after  forfeiture  of  the  old,  Russell 
v.  Dufresne,  1  Alaska,  486.  See  Nevada  Sierra  Oil  Co.  v.  Home  Oil  Co. 
<C.  C)  98  Fed.  673;  Fleming  v.  Daly,  12  Colo.  App.  439,  55  Pac.  946;  Mc- 
Millen  v.  Ferrum  Min.  Co.,  32  Colo.  38,  74  Pac.  461,  105  Am.  St.  Rep.  74. 

T  "In  Little  Gunnell  Co.  v.  Kimber,  1  Morr.  Min.  Rep.  536,  Fed.  Cas.  No. 
8,402,  a  secret  underground  working  from  an  old  claim  was  not  allowed 
to  hold  as  a  valid  basis  for  relocation  of  an  adjoining  claim;  but  that  de- 
cision was  upon  the  letter  of  the  Colorado  statute  concerning  relocations, 
which  in  terms  requires  a  shaft  to  be  sunk  or  other  new  opening  to  be  made, 
nor  had  such  secret  discovery  been  followed  by  proper  surface  notice."  Mor- 
rison's Mining  Rights  (13th  Ed.)  p.  44.  See  Reiner  v.  Schroeder,  146  Cal. 
411,  80  Pac.  517.  An  offer  to  prove  a  secret  underground  discovery  was 
properly  rejected,  where  a  previous  discovery  and  location  thereon  by  the 
adverse  party  were  shown.  McMillen  v.  Ferrum  Min.  Co.,  32  Colo.  38,  74 
Pac.  461,  105  Am.  St.  Rep.  74.  A  tunnel  discovery  was  held  to  support 
surface  location  in  BREWSTER  v.  SHOEMAKER,  28  Colo.  176,  63  Pac. 
309,  53  L.  R.  A.  793,  89  Am.  St.  Rep.  188,  though  the  tunnel  was  not  located 
under  the  tunnel  site  act  of  Congress. 

s  Chapter  XIV,  §§  65,  66,  infra. 

»  Id. 

10  Columbia  Copper  Min.  Co.  v.  Duchess  Mining,  Milling  &  Smelting  Co., 
13   Wyo.    244,    79   Pac.    385 ;     Charlton   v.   Kelly,    2    Alaska,    532.     Locators, 
who  recorded  a  location  certificate  reciting  discovery  and  sold  an  interest 
on  the  faith  of  the  record,  were  held  estopped  to  deny  that  there  had  been 
a  discovery  in  McCarthy  v.   Speed,  11  S.  D.  362,  77  N.  W.  590,     See  Eberle 
v.   Carmichael,  8  N.  M.   169,   42  Pac.  95.     On  evidence  of  a  discovery,   see 
Conway  v.  Hart,  129  Cal.  480,  62  Pac.  44;    Ormund  v.  Granite  Mt.  Min.  Co., 
11   Mont.  303,  28  Pac.  289;    Davidson  v.   Bordeaux,   15  Mont.  245,  38  Pac. 
1075:    Walsh  v.  Mueller,  16  Mont.  180,  40  Pac.  292. 

11  See  McKinstry  v.  Clark,  4  Mont.  370,  1  Pac.  759;    Reynolds  v.  Pasco^, 
24  Utah,  219,  66  Pac.  1064;    Reiner  v.  Schroeder,  146  Cal.  411,  80  Pac.  517; 
Poplar  Creek  Consol.  Quartz  Mine,  16  Land  Dec.  Dep.  Int.  1. 


150  DISCOVERY    OF  LODE   AND   PLACER   CLAIMS.  (Ch.  10 

arises.  If  we  put  to  one  side  the  question  of  extralateral  rights, 
it  seems  to  be  true  that  "there  are  four  classes  of  cases  where  the 
courts  have  been  called  upon  to  determine  what  constitutes  a  lode 
or  vein,  within  the  intent  and  meaning  of  different  sections  of  the 
Revised  Statutes:  (1)  Between  miners  who  have  located  claims  on 
the  same  lode.  *  *  -  *  (2)  Between  placer  and  lode  claimants. 
*  *  *  (3)  Between  mineral  claimants  and  parties  holding  townsite 
patents  to  the  same  ground.  (4)  Between  mineral  and  agricultural 
claimants  of  the  same  land.  The  mining  laws  of  the  United  States 
were  drafted  for  the  purpose  of  protecting  the  bona  fide  locators  of 
mining  ground,  and  at  the  same  time  to  make  necessary  provisions  as 
to  the  rights  of  agriculturists  and  claimants  of  townsite  lands.  The 
object  of  each  section  and  of  the  whole  policy  of  the  entire  statute 
should  not  be  overlooked.  The  particular  character  of  each  case 
necessarily  determines  the  rights  of  the  respective  parties,  and  must 
be  kept  constantly  in  view,  in  order  to  enable  the  court  to  arrive  at 
a  correct  conclusion.  What  is  said  in  one  character  of  cases  may  or 
may  not  be  applicable  in  the  other."  12 

In  case  (1),  supra,  very  slight  evidence  of  a  lode  will  suffice.  As 
between  two  conflicting  lode  claimants  the  question  must  be  which 
first  discovered  such  a  vein  as  the  ordinary  reasonable  miner  would 
concede  might  justify  the  discoverer  in  expending  time  and  money 
to  develop.  Above  all  it  should  be  remembered  that  "it  was  never 
intended  that  the  court  should  weigh  scales  to  determine  the  value 
of  mineral  found  as  between  a  prior  and  subsequent  locator  of  a  min- 
ing claim  on  the  same  lode."  13  Even  in  such  a  case,  though  it  is  true 
that  "the  rule  respecting  the  sufficiency  of  a  discovery  of  mineral  is 
more  liberal  than  when  it  is  between  a  mineral  claimant  and  one  seek- 
ing to  make  an  agricultural  entry,  for  the  reason  that  where  land  is 
sought  to  be  taken  out  of  the  category  of  agricultural  lands  the  evi- 
dence of  its  mineral  character  should  be  reasonably  clear,  while  in  re- 
spect to  [mineral]  lands  in  a  controversy  between  [mineral]  claimants 
the  question  is  simply  which  is  entitled  to  priority,"  yet  "there  must  be 
such  a  discovery  of  mineral  as  gives  reasonable  evidence  of  the  fact 
either  that  there  is  a  vein  or  lode  carrying  the  precious  mineral  or,  if  it 
be  claimed  as  placer  ground,  that  it  is  valuable  for  such  mining."  14 

In   case   (2),    supra,   if   the   attempted   lode   location   preceded   the 

12  MIGEON  v.  MONTANA  CENT.  R.  CO.,  77  Fed.  249,  254,  23  C.  C.  A.  156. 

is  BONNER  v.  MEIKLE  (C.  C.)  82  Fed.  697.  703.  See  Fox  v.  Myers 
(Nev.)  86  Pac.  793.  The  court  will  view  the  evidence  of  the  senior  locator's 
prior  discovery  in  the  most  favorable  light  possible.  AMBERGRIS  MIN. 
CO.  v.  DAY,  12  Idaho,  108,  85  Pac.  109. 

nCHRISMAN  v.   MILLER,    197   U.    S.   313,    323,   25    Sup.    Ct.   468,   49   L. 


§  42)  DISCOVERT   OF   LODE   CLAIMS.  151 

placer  in  point  of  time,  the  same  test  should  be  applied;15  but,  if 
the  placer  preceded  the  lode,  then  a  "known  lode"  in  the  placer  should 
be  recognized  by  the  courts  only  on  clear  proof  that  a  vein  has  been 
discovered  which  it  will  pay  to  work.18 

What  is  true  in  case  (2),  supra,  is  also  true  in  case  (3),  supra. 

In  case  (4),  supra,  the  land  must  be  more  valuable  for  mining  than 
for  agriculture  before  it  can  be  located.  Where  no  homestead  en- 
try has  been  made,  less  evidence  will  justify  a  mining  location  than 
will  do  so  where  the  first  claimant  seeks  to  hold  it  as  agricultural 
land.17 


42.  While  a  mining  claim,  based  upon  a  discovery  -within  the  limits 
of  an  already  existing  patented  or  unpatented  claim,  is  void, 
it  is  believed  that,  under  a  logical  extension  of  the  doctrines  of 
Lavagnino  v.  Uhlig  and  of  Farrell  V.  Lockhart,  an  abandon- 
ment by  the  senior  locator  of  the  junior  locator's  discovery 
•will  make  valid  the  void  junior  location,  if  prior  to  the  aban- 
donment the  junior  ground  has  not  been  included  in  another 
valid  location. 

The  discovery  must  be  made  within  the  limits  of  the  claim  lo- 
cated, and  must  be  upon  unappropriated  lands  of  the  United  States,18 
and  therefore,  if  it  is  made  within  the  limits  of  a  prior  valid  loca- 

Ed.  770;  Charlton  v.  Kelly,  156  Fed.  433,  84  C.  C.  A.  295.  Compare,  how- 
ever, Ambergris  Min.  Co.  v.  Day,  12  Idaho,  108,  85  Pac.  109. 

iBLANGE  v.  ROBINSON,  148  Fed.  799,  79  C.  C.  A.  1. 

is  See  Brownfield  v.  Bier,  15  Mont.  403,  39  Pac.  461.  The  same  test 
should  be  applied,  it  seems,  where  a  placer  is  located  over  an  abandoned 
lode  claim.  McCONAGHY  v.  DOYLE,  32  Colo.  92,  75  Pac.  419.  But  a 
recent  case  takes  the  apparently  indefensible  position  that  any  vein  "which 
would  support  a  location  on  the  public  domain  is,  when  known  to  exist  as 
a  clearly  ascertained  vein,  such  a  vein  as  is  excepted  from  the  operation 
of  the  placer  patent."  Noyes  v.  Clifford  (Mont.)  94  Pac.  842,  848. 

17  Steele  v.  Tanana  Mines  R.  Co.,  148  Fed.  678,  78  C.  C.  A.  412. 

is  Behrends  v.  Goldsteen,  1  Alaska,  518;  Porter  v.  Tonopah  North  Star 
Tunnel  &  Development  Co.  (C.  C.)  133  Fed.  756;  Michael  v.  Mills,  22  Colo. 
439,  45  Pac.  429;  Tartar  v.  Spring  Creek  Water  &  Mining  Co.,  5  Cal.  395; 
McPherson  v.  Julius,  17  S.  D.  98,  95  N.  W.  428;  Kirk  v.  Meldrum,  28  Colo. 
453,  65  Pac.  633;  Peoria  &  Colorado  Mill.  &  Min.  Co.  v.  Turner,  20  Colo. 
App.  474,  79  Pac.  915;  Shattuck  v.  Costello,  8  Ariz.  22,  68  Pac.  529;  M-c- 
Williams  v.  Winslow,  34  Colo.  341,  82  Pac.  538.  See  Conway  v.  Hart,  129 
Cal.  480,  62  Pac.  44;  Risch  v.  Wiseman,  36  Or.  484,  59  Pac.  1111,  78  Am. 
St.  Rep.  783.  Where  discovery  and  location  by  a  citizen  are  proven,  a  prima 
facie  showing  that  the  land  was  unoccupied  mineral  land  of  the  United 
fetates  is  made  out.  Goldberg  v.  Bruschi,  146  Cal.  708,  81  Pac.  23.  But 
see  McWilliams  v.  Winslow,  34  Colo.  341,  82  Pac.  538;  semble  contra  in 
adverse  suits.  Where  public  land  has  been  granted  to  private  parties  with- 


152  DISCOVERY   OF   LODE   AND  PLACER   CLAIMS.  (Ch.  10 

tion,  it  is  not  a  valid  discovery.  It  is  not  such  a  discovery  unless 
the  lode  is  within  or  below  a  surface  that  is  unoccupied  public  do- 
main.19 Indeed,  a  discovery  within  the  limits  of  a  valid  prior  location 
has  uniformly  been  treated  as  making  the  junior  attempted  location 
absolutely  void,  even  though  the  senior  location  be  unpatented.20 
Effect  of  Lavagnino  v.  Uhlig  and  of  Parr  ell  v.  Lockhart. 

It  is  believed,  however,  that  the  prevailing  notion  is  erroneous, 
and  that  a  location  based  on  a  discovery  in  a  prior  unpatented  claim 
is  voidable  merely,  not  absolutely  void.  The  question  to  ask  is 
whether,  on  an  application  to  patent  the  junior  attempted  location, 
protest  would  be  proper.  It  has  been  assumed  by  the  courts  and 
mining  law  writers  that  a  location  made  on  a  discovery  within  the 
limits  of  a  prior  location  is  void  for  all  purposes,  and,  if  it  is,  then 
protest  would  seem  proper.  But  is  it?  As  against  third  persons, 
who  make  a  discovery  on  unappropriated  public  domain  and  validly 
throw  the  lines  of  their  location  so  as  to  include  the  ground  of  this 
ineffectual  location  while  it  remains  such,  a  location  based  on  a 
discovery  within  a  prior  location  undoubtedly  is  void.  But  if  the 

out  reservations  or  exceptions,  third  persons  have  no  right  to  prospect 
thereon.  Francoeur  v.  Newhouse  (C.  C.)  40  Fed.  618;  Henshaw  v.  Clark, 
14  Cal.  460.  See  Pacific  Coast  Min.  &  Mill.  Co.  v.  Spargo  (C.  C.)  16  Fed. 
348.  Where  a  judgment  was  entered  that  neither  of  the  parties  to  the  ac- 
tion had  any  possessory  right  in  certain  claims,  and  the  plaintiff  in  the 
action  at  once  relocated  them  and  did  the  required  assessment  work,  a 
finding  that  the  relocations  were  made  on  unoccupied  public  land  was  up- 
held in  Lauman  v.  Hoofer,  37  Wash.  382,  79  Pac.  953. 

isTRAPHAGEN  v.  KIRK,  30  Mont.  562,  77  Pac.  58,  and  cases  cited;  Mi- 
chael v.  Mills,  22  Colo.  439,  45  Pac.  429.  See  Girard  v.  Carson,  22  Colo.  345,  44 
Pac.  508;  Heil  v.  Martin  (Tex.  Civ.  App.)  70  S.  W.  430;  Gleeson  v.  Martin 
White  Min.  Co.,  13  Nev.  442.  For  case  on  the  validity  of  location  on  the  dip  of 
a  vein,  see  note  5,  supra. 

20  LOCKHART  v.  FARRELL,  31  Utah,  155,  86  Pac.  1077;  Atkins  v. 
Hendree,  1  Idaho,  95;  Moyle  v.  Bullene,  7  Colo.  App.  308,  44  Pac.  69  (pat- 
ented) ;  Tuolumne  Oonsol.  Min.  Co.  v.  Maier,  134  Cal.  583,  66  Pac.  863 ; 
Sierra  Blanca  Mining  &  Reduction  Co.  v.  Winchell,  35  Colo.  13,  83  Pac. 
C28;  Anderson  v.  Caughey,  3  Cal.  App.  22,  84  Pac.  223;  Sullivan  v.  Sharp, 
33  Colo.  346,  80  Pac.  1054;  Hoban  v.  Boyer,  37  Colo.  185,  85  Pac.  837; 
Watson  v.  Mayberry,  15  Utah,  265,  49  Pac.  479;  Russell  v.  Dufresne,  1 
Alaska,  486;  Fisher  v.  Seymour,  23  Colo.  542,  49  Pac.  30;  Molina  v.  Luce 
(Ariz.)  76  Pac.  602.  This  is  so,  even  though  the  senior  and  junior  claims 
are  both  owned  by  the  same  locator,  Reynolds  v.  Pascoe,  24  Utah,  219,  66 
Pac.  1064;  Erwin  v.  Perego,  93  Fed.  608,  35  C.  C.  A.  482;  and  though  the 
second  location  was  made  on  the  suggestion  of  one  of  the  two  locators  of 
the  first,  Russell  v.  Dufresne,  1  Alaska,  486.  A  location  based  on  a  dis- 
covery on  the  dip  of  a  vein  of  which  the  apex  has  already  been  located  is 
void.  Bunker  Hill  &  Sullivan  Mining  &  Concentrating  Co.  v.  Shoshone 
Min.  Co.,  33  Land  Dec.  Dep.  Int.  142. 


§  42)  DISCOVERY  OF  LODE  CLAIMS.  153 

senior  location  is  abandoned,  so  that  the  discovery  place  becomes  open 
to  location  and  the  rights  of  third  persons  have  not  intervened,  will 
not  the  location  become  good,  just  as  it  would  to  the  part  not  in  con- 
flict if  a  discovery  had  been  made  outside  the  conflict  area?  If  so — 
and  a  logical  extension  of  the  doctrine  announced  in  Lavagnino  v. 
Uhlig,21  that  on  the  abandonment  of  the  senior  location  the  conflict 
area  inures,  without  more,  to  the  junior  location,*  seems  to  require 
us  to  say  that  it  does22 — then  only  an  adverse  instead  of  a  protest,  will 
suffice  to  keep  the  junior  location  from  getting  a  patent ;  and  such  is  the 
land  department  rule.23  Of  course,  in  Lavagnino  v.  Uhlig,  so  far  as 
the  published  opinion  shows,  the  junior  location  was  at  the  start  good 
against  all  the  world  except  as  to  the  conflict  area,  while  in  the  situa- 
tion being  discussed  it  is  good  at  the  start  against  nobody;24  but, 
since  a  location  good  against  nobody  for  want  of  any  discovery  may 
be  perfected  by  a  discovery  anywhere  within  the  claim  limits,25  just 
as  in  some  states  a  claim  which  has  allowed  a  junior  claim  to  patent 
its  discovery  may  be,26  why  may  it  not  also  be  perfected  as  against 
third  persons  by  the  senior  locator  abandoning  the  discovery  area 
or  failing  to  adverse,  and  so  the  discovery  finally  turning  out  to  be 
within  the  claim  limits?  While  the  latest  expression  of  the  United 
States  Supreme  Court  is  impliedly  against  the  doctrine  here  contend- 
ed for,27  it  is  believed  that,  prior  to  the  attaching  of  intervening 

21 198  U.  S.  443,  25  Sup.  Ct.  716,  49  L.  Ed.  1119. 

*The  case  of  Moorhead  v.  Erie  Min.  &  Mill.  Co.  (Colo.)  96  Pac.  253,  is 
contra  to  Lavagnino  v.  Dhlig,  198  U.  S.  443,  25  Sup.  Ct.  716,  49  L.  Ed.  1119, 
and  therefore  cannot  be  supported  until  that  case  is  expressly  overruled 
The  Colorado  opinion  does  not  even  mention  Lavagnino  v.  Uhlig. 

22  But  see,  contra,  LOCKHART  v.  FARRELL,  31  Utah,  155,  86  Pac.  1077. 
See,  also,  Sullivan  v.  Sharp,  33  Colo.  346,  80  Pac.  1054. 

23Gowdy  v.  Kismet  Gold  Min.  Co.,  22  Land  Dec.  Dep.  Int.  624;  Ameri- 
can Consolidated  Mining  &  Milling  Co.  v.  De  Witt,  26  Land  Dec.  Dep.  Int. 
580;  MUTUAL  MINING  &  MILLING  CO.  v.  CURRENCY  CO.,  27  Land 
Dec.  Dep.  Int.  191;  Burnside  v.  O'Connor,  30  Land  Dec.  Dep.  Int.  67. 

24  From  the  brief  of  counsel  for  plaintiff  in  error  in  FARRELL  v.  LOCK- 
HART,  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed.  ,  it  appears  that  the 

record  in  LAVAGNINO  v.  UHLIG  showed  a  location  based  on  a  discovery 
in  a  prior  claim. 

25CREEDE  &  C.  C.  MIN.  &  MILL.  CO.  v.  UINTA  TUNNEL,  MINING 
&  TRANSPORTATION  CO.,  196  U.  S.  337,  25  Sup.  Ot.  266,  49  L.  Ed.  501 ; 
SILVER  CITY  GOLD  &  SILVER  MIN.  CO.  v.  LOWRY,  19  Utah,  334,  57 
Pac.  11;  TONOPAH  &  S.  L.  MIN.  CO.  v.  TONOPAH  MIN.  CO.  (C.  C.)  125 
Fed.  408;  Whiting  v.  Straup  (Wyo.)  95  Pac.  849.  GOLDEN  TERRA  MIN. 
CO.  v.  MAHLER,  4  Morr.  M.  Rep.  390.  And  see  cases  in  Note  51,  infra. 

2«  TREASURY  TUNNEL,  MINING  &  REDUCTION  CO.  V.  BOSS,  32 
Colo.  27,  74  Pac.  888,  105  Am.  St.  Rep.  60. 

27  FARRELL  v.   LOCKHART,  210  U.   S.   142,  28  Sup.  Ct.  681,   52  L.  JEd. 


154  DISCOVERY   OF   LODE   AND   PLACEK   CLAIMS.  (Oil.  16 

rights  of  third  parties,  the  supposed  void  location  may  be  thus  per- 
fected, f  In  one  view  it  is  giving  a  retroactive  effect  to  the  abandon- 
ment; but  in  the  more  exact  view  it  is  allowing  the  junior  claim, 
which  was  ineffective  because  of  no  proper  discovery,  to  become  ef- 
fective by  the  acquisition  of  such  a  discovery  through  the  senior  lo- 
cator's abandonment  of  the  discovery  ground.  The  doctrine  contend- 
ed for  protects  the  junior  claim  only  when  its  locator  is  diligent  in 
preserving  it,$  and  does  so  only  against  subsequent  parties  who  know- 
ingly seek  to  get  a  technical  advantage  over  him,  and  it  is  difficult  to 
see  why  he  is  not  entitled  to  that  protection.  Until  the  federal  Su- 
preme Court  actually  decides  the  point,  however,  a  prudent  miner  who 
has  such  a  precarious  location  will  promptly  make  a  complete  relo- 
cation to  include  the  abandoned  discovery  place.28 


43.    The   discovery   must   be   discriminated   from   the   discovery   shaft, 
which  in  some  states  must  disclose  a  vein.. 

The  discovery  must  be  distinguished  from  the  discovery  shaft 
required  by  state  statute  as  part  of  the  location.  The  discovery  shaft 
is  one  of  the  acts  of  location  which  normally  follows  discovery.  As 
Messrs.  Morrison  and  De  Soto  point  out,  a  drill  hole  will  suffice  for 
discovery,  but,  of  course,  will  not  answer  for  a  discovery  shaft.29 
Yet  in  Colorado  a  discovery  and  a  discovery  shaft  are  very  closely 
connected,  because  tlje  state  statute  requires  the  discovery  shaft  "to 
show  a  well-defined  crevice,"  80  and,  as  "crevice"  there  means  "min- 
eral-bearing vein,"  81  that  is  held  to  make  a  discovery  in  the  discovery 
shaft  essential  to  a  valid  location.32  In  other  states  a  discovery  other 

.  For  cases  of .  premature  relocation  involving  a  similar  question,  see 

chapter  XVII,  §  95b. 

f  Compare  Tonopah  &  S.  L.  Min.  Co.  v.  Tonopah  Min.  Co.  of  Nevada  (C. 
O.)  125  Fed.  408,  where  the  second  claim  was  validated  both  because  the 
senior  locator  changed  the  lines  of  the  claim  so  as  to  give  the  junior  claim 
its  original  discovery,  and  because  new  discoveries  were  made  in  the  junior 
claim.  To  the  same  effect,  see  Golden  Link  Mining,  Leasing  &  Bonding 
Co.,  29  Land  Dec.  Dep.  Int.  384. 

$  Adams  v.  Polglase,  32  Land  Dec.  Dep.  Int.  477,  33  Land  Dec.  Dep.  Int.  30. 

28  That  relocation  by  amendment  will  not  do  was  held  in  Sullivan  v. 
Sharp,  33  Colo.  346,  80  Pac.  1054. 

2»  Morrison's  Mining  Rights  (13th  Ed.)  p.  33. 

so  Mills'  Ann.  St.  Colo.  §  3152. 

si  Beals  v.  Cone,  27  Colo.  473,  62  Pac.  958,  83  Am.  St.  Rep.  92. 

32McMILLEN  v.  FERRUM  MIN.  CO.,  32  Colo.  38,  74  Pac.  461,  105  Am. 
St.  Rep.  64;  Beals  v.  Cone,  27  Colo.  473,  62  Pac.  958,  83  Am.  St.  Rep.  92. 
See  Van  Zandt  v.  Argentine  Min.  Co.  (C.  C.)  8  Fed.  725,  2  McCrary,  159; 


§  44)  PEDIS   POSSESSIO.  155 

than  in  the  discovery  shaft  is  sufficient.33  But  even  in  Colorado  one 
need  not  make  the  first  place  of  work  the  discovery  shaft,  but  may 
try  one  place  after  another  until  he  makes  a  discovery,  and  then  put 
the  shaft  there.3* 


PEDIS   POSSESSIO. 

44.  Pending  a  discovery  by  anybody,  the  actual  possession  of  the  prior 
prospector  will  be  protected  to  the  extent  needed  to  give  him 
•working  room  and  to  prevent  probable  breaches  of  the  peace; 
bnt  this  pedis  possessio  must  yield  to  an  actnal  location,  bas- 
ed on  a  valid  discovery,  and  made  peaceably  and  openly.  There 
is  an  apparent  conflict  in  the  cases  on  the  latter  point,  how- 
ever. 

Bnt  the  difficult  question  is  how  far  Erhardt  v.  Boaro  extends,  for 
that  case  seems  to  say  that  one  who  has  discovered  sufficient 
"float"  to  justify  a  reasonable  belief  in  the  proximity  of  a 
vein,  and  who  prosecutes  diligently  discovery  -work  which 
finally  uncovers  the  vein,  will  have  priority  over  one  who 
makes  an  intermediate  discovery.  It  is  believed,  however, 
that  Erhardt  v.  Boaro  will  ultimately  be  construed  simply  to 
permit  a  discovery  by  a  prior  prospector,  who  acts  diligent- 
ly and  in  good  faith,  to  be  predicated  on  very  slight  evidence. 

A  difficult  question  in  regard  to  discovery  is  that  of  how  long  one's 
possession  will  be  protected  in  the  making  of  a  discovery.  That 
question  is  involved  in  difficulty  because  of  the  established  doctrine 
that  a  valid  location  cannot  be  made  by  one  who  forcibly  dispossesses 
another  to  do  it,  and  because  of  some  definitions  of  a  lode  which 
make  the  word  mean  anything  which  will  lead  a  miner  to  ore.  In 
Grossman  v.  Pendery,  Mr.  Justice  Miller  said:,  "A  prospector  on  the 
public  mineral  domain  may  protect  himself  in  the  possession  of  his 
pedis  possessionis  while  he  is  searching  for  mineral.  His  possession 

Terrible  Min.  Go.  v.  Argentine  Min.  Co.  (C.  C.)  89  Fed.  583;  Argentine  Min. 
Co.  v.  Terrible  Min.  Co.,  122  U.  S.  478,  7  Sup.  Ct.  1356,  30  L.  Ed.  1140. 

33  HARRINGTON  v.  CHAMBERS,  3  Utah,  94,  1  Pac.  362 ;  Chambers  v. 
Harrington,  111  U.  S.  350,  4  Sup.  Ct.  428,  28  L.  Ed.  452;  North  Noonday 
Min.  Co.  v.  Orient  Min.  Co.  (C.  C.)  1  Fed.  522;  Tonopah  &  S.  L.  Min. 
Co.  v.  Tonopah  Min.  Co.  (C.  C.)  125  Fed.  408;  O'Donnell  v.  Glenn,  8  Mont 
284,  19  Pac.  302.  See  McShane  v.  Kenkle,  18  Mont.  208,  44  Pac.  979,  33 
L.  R.  A.  851,  56  Am.  St.  Rep.  579. 

s 4  TERRIBLE  MIN.  CO.  v.  ARGENTINE  MIN.  CO.  (C.  C.)  89  Fed. 
583;  Argentine  Min.  Co.  v.  Terrible  Min.  Co.,  122  U.  S.  478,  7  Sup.  Ct. 
1356,  30  L.  Ed.  1140.  If  the  discovery  is  made  in  the  discovery  shaft  be- 
fore the  rights  of  others  intervene,  the  location  will  be  upheld.  McGin- 
nis  v.  Egbert,  8  Colo.  41,  5  Pac.  652. 


156  DISCOVERY   OF   LODE   AND   PLACER   CLAIMS.  (Cll.  10 

so  held  is  good  as  a  possessory  title  against  all  the  world,  except  the 
government  of  the  United  States."  35 

But,  though  this  dictum  makes  the  whole  ground  staked  out  as 
one  claim  pedis  possessio,  that  certainly  is  too  broad  for  our  notions 
to-day.36  "Pedis  possessio"  means  actual  possession,  and  pending 
a  discovery  by  anybody  the  actual  possession  of  the  prior  arrival  will 
be  protected  to  the  extent  needed  to  give  him  room  for  work  and  to 
prevent  probable  breaches  of  the  peace.37  He  will  also  be  protected 
against  mere  trespassers.38  But,  while  the  pedis  possessio  is  thus 
protected,  it  must  yield  to  an  actual  location  on  a  valid  discovery  made 
by  one  who  has  located  peaceably  and  neither  clandestinely  nor 
through  '  fraudulent  purposes.38  "It  is  true,"  said  the  court  in 

s s  GROSSMAN  v.  FENDER Y  (O.  C.)  8  Fed.  693.  See  Cowell  v.  Lam- 
mers  (O.  C.)  21  Fed.  200.  For  rule  prior  to  1872,  see  Rush  v.  French,  1  Ariz. 
99,  25  Pac.  816. 

a  6  Becker  v.  Pugh,  9  Colo.  589,  13  Pac.  906.  See  Gemmell  v.  Swain,  28 
Mont.  331,  72  Pac.  662,  98  Am.  St.  Rep.  570. 

s  T  FIELD  v.  GREY,  1  Ariz.  404,  25  Pac.  793;  Whiting  v.  Straup  (Wyo.) 
95  Pac.  849.  See  Meydenbauer  v.  Stevens  (D.  C.)  78  Fed.  787;  Weese  v. 
Barker,  7  Colo.  178,  2  Pac.  919. 

ss  Brandt  v.  Wheaton,  52  Cal.  430;  Aurora  Hill  Consol.  Min.  Co.  v.  Eigh- 
ty-Five Min.  Co.  (C.  C.)  34  Fed.  515;  Bulette  v.  Dodge,  2  Alaska,  427; 
Whiting  v.  Straup  (Wyo.)  95  Pac.  849;  Phillips  v.  Brill  (Wyo.)  95  Pac. 
856.  See  Malecek  v.  Tinsley,  73  Ark.  610,  85  S.  W.  81;  Ware  v.  White, 
81  Ark.  220,  108  S.  W.  831. 

39BELK  v.  MEAGHER,  3  Mont.  65,  104  U.  S.  279,  26  L.  Ed.  735;  Hop- 
kins v.  Noyes,  4  Mont.  550,  2  Pac.  280;  Noyes  v.  Black,  4  Mont.  527,  2 
Pac.  769;  Whiting  v.  Straup  (Wyo.)  95  Pac.  849;  Thallmann  v.  Thomas,  111 
Fed.  277,  49  C.  C.  A.  317 ;  Malone  v.  Jackson,  137  Fed.  878,  70  C.  C.  A.  216 ; 
COPPER  GLOBE  MIN.  CO.  v.  ALL-MAN,  23  Utah,  410,  64  Pac.  1019;  Charl- 
ton  v.  Kelly,  2  Alaska,  532.  See  Horswell  v.  Ruiz,  67  Cal.  Ill,  7  Pac.  197. 
So  a  peaceable  relocation  for  failure  to  do  annual  labor  will  be  upheld,  al- 
though the  claim  at  the  time  of  the  relocation  is  occupied  by  the  original 
locator,  if  the  latter  have  not  resumed  work  in  time.  DU  PRAT  v.  JAMES, 
65  Cal.  555,  4  Pac.  562.  Compare  Walsh  v.  Henry,  38  Colo.  393,  88  Pac. 
449.  But  there  are  cases  which  hold  that  no  location  can  be  made  within 
the  lines  of  a  claim  in  the  actual  possession  of  another,  no  matter  how 
defective  the  location  invaded  may  be.  Eilers  v.  Boatman,  3  Utah,  159,  2 
Pac.  66;  Phenix  Mill.  &  Min.  Co.  v.  Lawrence,  55  Cal.  143;  Weese  v.  Bar- 
ker, 7  Colo.  178,  2  Pac.  919;  Rush  v.  French,  1  Ariz.  99,  25  Pac.  816;  Craig 
v.  Thompson,  10  Colo.  517,  16  Pac.  24.  Compare  Omar  v.  Soper,  11  Colo. 
380,  18  Pac.  443,  7  Am.  St.  Rep.  246;  Phillips  v.  Smith  (Ariz.)  95  Pac.  91; 
Ware  v.  White,  81  Ark.  220,  108  S.  W.  831;  New  England  #  noaiiuea  Oil 
Co.  v.  Congdon  (Cal.)  92  Pac.  180.  A  complete  answer  to  those  cases  ,vould 
seem  to  be  found  in  the  following  passage: 

"A  valid  claim  to  unappropriated  public  land  cannot  be  instituted  while 
it  is  in  the  possession  of  another,  who  has  the  right  to  its  possession  un- 
der an  earlier  lawful  location.  Nor  can  such  a  claim  be  initiated  by  forci- 
ble or  fraudulent  entry  upon  land  in  possession  of  one  who  has  no  right 


§  44)  PEDIS   POSSESSIO. 

Nevada  Sierra  Oil  Co.  v.-  Home  Oil  Co.,  "that  upon  mineral  land  of 
the  United  States  upon  which  there  is  no  valid  existing  location  any 
competent  locator  may  enter,  even  if  it  is  in  the  actual  possession  of 
another,  provided  he  can  do  so  peaceably  and  in  good  faith,  in  order 
to  initiate  a  location  for  himself;  but  no  right  upon  any  govern- 
ment land,  whether  mineral  or  agricultural,  which  is  in  the  actual 
possession  of  another,  can  be  initiated  by  a  forcible,  fraudulent,  sur- 
reptitious, or  clandestine  entry  thereon.  Such  entry  must  be  open 
and  aboveboard,  and  made  in  good  faith.  One  who  is  in  the  actual 
possession  of  a  mining  claim,  working  it  for  the  mineral  it  contains 
and  claiming  it  under  the  laws  of  the  United  States,  whether  the  lo- 
cation under  which  he  so  claims  is  valid  or  invalid,  cannot  be  forcibly, 
surreptitiously,  clandestinely,  or  otherwise  fraudulently  intruded  upon 
or  ousted,  while  he  is  asleep  in  his  cabin  or  temporarily  absent  from 
his  claim."  *° 

If  the  location  is  peaceable,  it  is  hard  to  see  why  the  fact  that  it  is 
clandestine  or  accomplished  by  strategy  should  make  it  r Ejection- 
able  ; 41  but  the  theory  seems  to  be  that  such  a  course  will  naturally 
lead  to  a  breach  of  the  peace,  and  so  should  be  discountenanced. 
Where  several  competing  locators  are  in  possession  by  common  con- 
sent, the  first  one  to  make  a  discovery  and  to  follow  it  up  in  due 
time  with  the  acts  of  location  gets  the  claim.** 

Effect  of  Hrhardt  v.  Boaro. 

The  real  difficulty,  however,  in  regard  to  the  efficacy  of  a  pros- 
pector's possession  prior  to  discovery  is  created  by  Erhardt  v.  Boaro,42 
which  says,  in  effect,  that  one  who  has  discovered  sufficient  "float" 
to  justify  a  reasonable  belief  in  the  proximity  of  a  vein,  and  who 

either  to  the  possession  or  to  the  title.  But  every  competent  locator  has  the 
right  to  initiate  a  lawful  claim  to  unappropriated  public  land  by  a  peace- 
able adverse  entry  upon  it  while  it  is  in  the  possession  of  those  who  have 
no  superior  right  to  acquire  the  title  or  to  hold  the  possession.  Any  other 
rule  would  make  the  wrongful  occupation  of  public  land  by  a  trespasser 
superior  in  right  to  a  lawful  entry  of  it  under  the  acts  of  Congress  by  a 
competent  locator."  THALLMANN  v.  THOMAS,  111  Fed.  277-279,  49  C.  C 
A.  317. 

4«  NEVADA  SIERRA  OIL  CO.  y.  HOME  OIL  CO.  (O.  C.)  98  Fed.  673, 
680.  See  Miller  v.  Chrisman,  140  Oal.  440,  73  Pac.  1083,  74  Pac.  444,  98 
Am.  St.  Rep.  63;  Traphagen  v.  Kirk,  30  Mont.  562,  77  Pac.  58;  Clipper 
Min.  Co.  v.  Eli  Mining  &  Land  Co.,  194  U.  S.  220,  24  Sup.  Ct.  632,  48  L.  Ed. 
944.  Compare  Phillips  v.  Smith  (Ariz.)  95  Pac.  91. 

41  A  clandestine  completion  of  part  of  the  acts  of  location  by  the  first  dis- 
coverer was  upheld   in   ERHARDT  v.   BOAR'O,   113  U.    S.  527,  5   Sup.   Ct 
560,  28  L.  Ed.  1113. 

**  Johanson  v.  White  (C.  C.  A.)  160  Fed.  901. 

42  Erhardt  v.  Boaro,  113  U.  S.  527,  5  Sup.  Ct.  560,  28  L.  Ed:  1113. 


158  DISCOVERY   OF  LODE   AND   PLACER   CLAIMS.  (Ch.  10 

prosecutes  diligently  discovery  work  which  finally  uncovers  the  vein, 
will  be  protected  in  his  location  as  against  one  who  has  made  a  dis- 
covery pending  the  first  prospector's  uncovering  of  the  vein.43  In 
view  of  the  express  wording  of  section  2320,  Rev.  St.  U.  S.  (U.  S. 
Comp.  St.  1901,  p.  1424),  it  seems  certain  that  this  doctrine  proper- 
ly applies  only  to  those  cases  where  the  one  having  possessio  pedis  can 
be  said  to  have  actually  discovered  a  vein  at  the  time  the  second  man 
tries  to  locate.44  In  Erhardt  v.  Boaro,  however,  the  court  said: 
"And  whenever  preliminary  work  is  required  to  define  and  de- 
scribe the  claim  located,  the  first  discoverer  must  be  protected  in 
the  possession  of  the  claim  until  sufficient  excavations  and  develop- 
ment can  be  made,  so  as  to  disclose  whether  a  vein  or  deposit  of  such 
richness  exists  as  to  justify  work  to  extract  the  metal."  And  the  court 
added:  "This  allowance  of  time  for  the  development  of  the  character 
of  the  lode  or  vein  does  not,  as  intimated  by  counsel,  give  encourage- 
ment to  mere  speculative  locations.  *  *  *  There  must  be  some- 
thing more  than  a  mere  guess  on  the  part  of  the  miner  to  authorize 
him  to  make  a  location  which  will  exclude  others  from  the  ground, 
such  as  the  discovery  of  the  presence  of  the  precious  metals  in  it,  or  in 
such  proximity  to  it  as  to  justify  a  reasonable  belief  in  their  existence. 
*  *  *  It  would  be  difficult  to  lay  down  any  rules  by  which  to 
distinguish  a  speculative  location  from  one  made  «  in  good  faith,  with 
a  purpose  to  make  excavations  and  ascertain  the  character  of  the 
lode  or  vein,  so  as  to  determine  whether  it  will  justify  the  expend- 
itures required  to  extract  the  metal;  but  a  jury  from  the  vicinity  of 
the  claim  will  seldom  err  in  their  conclusions  on  the  subject."  45 

It  is  believed  that  the  above  language  will  be  qualified  so  as  to 
compel  a  discovery  before  protection  is  given  beyond  the  mere  pedis 
possessio,  but  yet  to  permit  a  discovery  to  be  predicated  upon  very 
slight  evidence,  "because,"  as  the  court  in  Bonner  v.  Meikle  points 
out,  "it  never  was  intended  that  the  courts  should  weigh  scales  to 
determine  the  value  of  the  mineral  found  [or  the  extent  of  the  find] 

43  Erhardt  v.  Boaro,  113  U.  S.  527,  5  Sup.  Ct.  560,  28  L.  Ed.  1113.     See 
Copper  Globe  Min.  Co.  v.  Allrnan,  23  Utah,  410,  64  Pac.   1019 ;    Redden  v. 
Harlan,  2  Alaska,  402.     Compare  Biglow  v.  Conradt  (C.  C.  A.)  159  Fed.  868. 

44  Compare  Waterloo  Min.  Co.  v.  Doe  (C.  C.)  56  Fed.  685. 

45  ERHARDT  v.  BOARO,   113  U.   S.  535,  5  Sup.  Ct.  560,  28  L.  Ed.   1113. 
Of  course,    the  "float"   found   actually   belongs  to  the   finder.     One   finding 
and  taking  possession  of  gold  on  public  land  may  recover  it  from  any  one 
taking  it  from  him.     Burns  v.   Clark,  133  Cal.  634,  66  Pac.  12,  85  Am.  St. 
Rep.   233;    Burns  v.   Schoenfeld,   1  Cal.   App.  121,   81  Pac.  713.     See  Sulli- 
van v.   Schultz,   22  Mont.   541,  57  Pac.  279;    Robertson  v.   Smith,   1  Mont. 
410.     But  see  Brown  v.  249  &  256  Quartz  Min.   Co.,   15  Cal.   152,  76  Am, 
Dec.  468. 


§  45)  RELATION    BETWEEN   DISCOVERY   AND   LOCATION.  159 

as  between  a  prior  and  subsequent  locator  of  a  mining  claim  on  the 
same  lode."  4C  Moreover,  despite  the  dictum  of  Miller,  J.,  in  Cross- 
man  v.  Pendery,47  it  seems  that  the  possessio  pedis  of  a  prospector 
"could  not  be  enlarged  to  include  the  entire  20-acre  [placer]  tract, 
or  [even]  the  whole  amount  of  ground  which  he  might  have  claimed 
under  one  or  more  quartz  locations/'  because  until  discovery  "the  pros- 
pector's rights  are  confined  to  the  ground  in  his  actual  possession."  *8 

THE  RELATION  BETWEEN  DISCOVERY   AND   LOCATION. 

45.  Discovery  should  precede  the  acts  of  location,  but  it  often  follows 
them.  In  the  latter  case,  if  no  rights  of  third  persons  inter- 
vene pending  discovery,  the  claim  is  as  valid  as  if  discovery 
had  preceded  the  acts  of  location.  In  any  case  the  location 
dates  only  from  the  discovery. 

The  local  mining  codes  allow  varying  times  within  which  to  perfect 
the  location  after  discovery,  and  mining  cnstom  and  common 
prudence  both  call  for  the  posting  of  a  dated  notice  of  dis- 
covery to  evidence  to  the  world  the  fact  and  time  of  discovery. 
Except  in  Oregon,  no  limit  seems  to  be  placed  on  the  number 
of  lode  locations,  each  based  on  a  valid  discovery,  that  may 
be  made  by  one  person. 

After  discovery  the  states  allow  varying  times  for  the  completion 
of  location.  Immecliately  upon  finding  the  vein,  the  discoverer  should 
place  at  the  point  of  discovery  a  notice  that  he  has  made  a  discovery, 
and  in  it  should  claim  the  statutory  time  to  perfect  location.  Unless 
he  does  this,  or  otherwise  continuously  indicates  to. the  world  his  claim, 
he  runs  the  risk  of  being  held  to  have  abandoned  his  discovery.  In 

46  BONNER  v.  MEIKLE  (C.  C.)  82  Fed.  697,  703.     Compare  Burke  v.  Mc- 
Donald, 3  Idaho,  296,  29  Pac.  98,  where  as  between  two  lode  claimants  the 
court  approved  the  requested  instruction  that  "a  valid  location  of  a  min- 
ing  claim  may  be  made  whenever  the  prospector  has  discovered  such   in- 
dications of  mineral  that  he  is  willing  to  spend  his  time  and  money  in  fol- 
lowing with  the  expectation  of  finding  ore,"  and  held  that  the  lower  court 
erred  in  substituting  the  words  "justified  in  spending"  for  the  words  "will- 
ing to  spend." 

47  8  Fed.  (C.  C.)  693. 

48  GEMMELL  v.  SWAIN,  28  Mont.  331,  72  Pac.  662,  663,  98  Am.  St.  Rep. 
570;    Lacey  v.  Woodward,  5  N.  M.  583,  25  Pac.  785;    Zollars  v.  Evans  (C. 
C.)  5  Fed.  172.     See  Hess  v.  Winder,  30  Cal.  349;    Hamilton  v.  Huson,  21 
Mont.  9,  53  Pac.  101.     See,  also,  Burns  v.  Clark,  133  Cal.  634,  66  Pac.  12, 
85  Am.  St.  Rep.  233,  where  a  similar  rule  was  applied  in  the  case  of  a  mill 
site.     But  see  Charlton  v.  Kelly,  2  Alaska,  532;    Bulette  v.  Dodge,  2  Alaska, 
427.     Compare  Lorenz  v.  Waldron,  96  Cal.  243,  31  Pac,  54,  where  the  claim- 
ant of  a  right  of  way  for  a  ditch  with  vertical  and  lateral  support  for  it 
was  not  allowed  to  object  to  the  location  of  a  mining  claim  subject  to  the 
right  of  way. 


1GO  DISCOVERY   OF   LODE   AND   PLACER  CLAIMS.  (Ch.  10 

Idaho,  by  statute,  this  preliminary  notice  is  required.  Then  in  some 
states  the  discoverer  has  60  days  in  which  to  sink  a  discovery  shaft, 
in  others  90,  and  a  reasonable  time  or  a  fixed  statutory  time  in  which 
to  stake  boundaries,  etc.  Whatever  the  time  allowed,  the  party  who 
makes  the  first  discovery,  and  who  within  the  time  allowed  follows 
it  up  with  the  remaining  acts  necessary  to  a  valid  location,  will  prevail 
over  a  subsequent  discoverer  who  is  more  expeditious  in  completing 
the  required  acts  of  location.49 

Discovery  after  Location. 

Discovery  should  precede  the  acts  of  location,  as  the  federal  statute 
expressly  provides  that  "no  location  of  a  mining  claim  shall  be  made 
until  the  discovery  of  the  vein  or  lode  within  the  limits  of  the  claim 
located."  B0  But  discovery  often  follows,  instead  of  preceding,  the 
acts  of  location,  and,  if  no  rights  of  third  parties  have  been  acquired 
pending  discovery,  the  location  is  made  good  by  the  subsequent  dis- 
covery.51 In  any  event  the  location  dates  from  discovery.52  The 

49  PELICAN  &  DIVES  M1N.  CO.  v.  SNODGRASS,  9  Colo.  339,  12  Pac. 
206;  Barnette  v.  Freeman,  2  Alaska,  286.  See  Gregory  v.  Pershbaker,  73 
Cal.  109,  14  Pac.  401;  Sierra  Blanca  Mining  &  Reduction  Co.  v.  Winchell, 
35  Colo.  13,  83  Pac.  628. 

so  Rev.  St.  U.  S.  §  2320  (U.  S.  Comp.  St.  1901,  p.  1424). 

61  CREEDE  &  CRIPPLE  CREEK  MIN.  &  MILL.  CO.  v.  UINTA  TUNNEL, 
MINING  &  TRANSP.  CO.,  196  U.  S.  337,  25  Sup.  Ct.  266,  49  L.  Ed.  501 ;   North 
Noonday  Min.  Co.  v.  Orient  Min.  Co.  (C.  C.)  1  Fed.  522,  6  Sawy.  299 ;    Jupiter 
Min.  Co.  v.  Bodie  Consol  Min.  Co.  (C.  C.)  11  Fed.  666,  7  Sawy.  96;    SHARKS Y 
v.  CANDIANI,  48  Or.  112,  85  Pac.  219,  7  L.  R.  A.  (N.  S.)  791;    Silver  City 
Gold  &  Silver  Min.  Co.  v.  Lowry,  19  Utah,  334,  57  Pac.  11 ;    Tonopah  &  S.  L. 
Min.  Co.  v.  Tonopah  Min.  Co.  (C.  C.)  125  Fed.  408;    Brewster  v.  Shoemaker, 
28  Colo.  176,  63  Pac.  309,  53  L.  R.  A.  793,  89  Am.  St.  Rep.  188;    Fisher  v. 
Seymour,  23  Colo.  542,  49  Pac.  30;    Whiting  v.   Straup  (Wyo.)  95  Pac.  849. 
See  Nevada  Sierra  Oil  Co.  v.  Home  Oil  Co.  (C.  C.)  98  Fed.  673;    Miller  v. 
Chrisman,   140   Cal.   440,   73   Pac.    1083,   74   Pac.  444,   98  Am.    St.   Rep.   63; 
La  Grande  Inv.  Co.  v.  Shaw,  44  Or.  416,  72  Pac.  795,  74  Pac.  919.    The  case 
of  Upton  v.  Larkin,  5  Mont.  600,  6  Pac.  66,  7  Mont.  449,  17  Pac.  728,  contra, 
is  clearly  wrong.     A  discovery  will  not  relate  back  to  cut  out  intervening 
rights.     BEALS  v.  CONE,  27  Colo.  473,  62   Pac.   948,  83  Am.   St.   Rep.  92. 
See   Tuolumne   Consol.   Min.    Co.   v.   Maier,   134  Cal.  583,   66   Pac.   863.     In 
Merced  Oil  Mining  Co.  v.  Patterson  (Cal.)  96  Pac.  90,  the  extreme  position 
is  taken  that  where  40  acres  of  placer  claim  of  160  acres  is  granted  away 
before  discovery,  and  the  grantee  later  makes  a  discovery  on  the  40  acres 
granted,  such  discovery  will  not  make  the  location  of  the  other  120  acres 
good  unless  at  the  time  of  the  grant  of  the  40  acres,  and  as  part  of  the 
consideration  for  it,  there  is  an  express  agreement  that  the  discovery  work 
shall  be  for  the  benefit  of  the  whole  claim.     It  is  believed  that  this  case  is 
unsound,  and  that  a  discovery  on  either  the  granted  or  the  retained  part  of 

62  HEALEY  v.  RUPP,  37  Colo.  25,  86  Pac.  1015 ;    Redden  v.  Harlan,  2 
Alaska,  402. 


§  45)  RELATION   BETWEEN   DISCOVERT  AND   LOCATION.  161 

federal  statutory  provision  means  nothing  more  than  that  no  location 
shall  be  considered  complete  until  there  has  been  a  discovery.63  No 
presumption  of  a  discovery  arises  from  the  fact  that  acts  of  location, 
such  as  marking  boundaries,  record,  etc:,  have  been  performed, 54  and 
the  burden  of  proving  a  prior  discovery  is  upon  the  one  relying  upon 
such  discovery.55 

Number  of  Locations  for  Hack  Discoverer. 

For  each  location  a  distinct  discovery  is  requisite ; 6e  but,  except  in 
Oregon,  no  limit  seems  anywhere  to  be  put  to  the  number  of  lode  lo- 
cations which  may  be  made  on  valid  discoveries  by  any  one  person.57 
The  annual  labor  requirement  attached  to  each  location  is  regarded  by 
the  United  States  as  full  protection  to  it  against  objectionable  monopoly 
of  the  public  mineral  domain.  Even  in  Oregon,  if  the  statute  limiting 
the  number  of  locations  which  one  person  may  make  on  a  given  vein58 
be  valid,  the  restriction  on  the  number  of  locations  is  imposed  for 
the  benefit  of  the  United  States,  and,  as  in  the  case  of  locations  by 
aliens  hereafter  discussed,  it  would  seem  that  on  principle  no  one  but 
the  United  States,  and  then  only  in  direct  proceedings  brought  for 
the  purpose,  could  raise  the  objection  of  the  excessive  number  of  lo- 
cations.69 

the  claim  should  make  good  the  whole  claim  so  long  as  no  Intervening  rights 
have  been  acquired  by  third  parties. 

53  OREEDB  &  C.  C.   MIN.   &   MILL.   CO.  v.   UINTA  TUNNEL  MIN.   & 
TRANSP.  CO.,  196  U.  S.  337,  25  Sup.  Ct  266,  49  L.  Ed.  501.     So  interpreted 
it   is   mandatory.     Ledoux  v.   Forester  (C.   C.)   94  Fed.   600.     See  Hayes  v. 
Lavagnino,  17  Utah,   185,  53  Pac.  1029;    Waterloo  Min.  Co.  v.  Doe  (C.  C.) 
56  Fed.  685 ;    Tuolumne  Consol.  Min,  Co.  v.  Maier,  134  Cal.  583,  66  Pac.  863. 
Intervening  vested  rights  cannot  be  cut  out  by  subsequent  discovery.     BEALS 
v.  CONE,  27  Colo.  473,  62  Pac.  948,  83  Am.  St.  Rep.  92.     Lack  of  discovery 
may  be  shown  in  an  action  to  recover  back  the  purchase  price  of  the  claim. 
Whitney  v.  Haskell,  216  Pa.  622,  66  Atl.  101. 

54  SMITH  v.  NEWELL  (C.  C.)  86  Fed.  56,  60;    Fox  v.  Myers  (Nev.)  86 
Pac.  793.    But  see  infra  chapter  XII,  p.  220. 

66  Sands  v.  Cruikshank,  15  S.  D.  142,  87  N.  W.  589. 

66  See  note  11,  supra.  Compare  the  discussion  of  whether  one  discov- 
ery shaft  will  serve  for  two  contiguous  lode  locations,  infra,  chapter  XII, 
§  54. 

57  There  is  no  limitation  on  the  number  of  mining  claims  which  one  may 
acquire  by  purchase.  Oarson  City  Gold  &  Silver  Min.  Co.  v.  North  Star 
Min.  Co.  (C.  C.)  73  Fed.  597 ;  Poire  v.  Wells,  6  Colo.  406 ;  Poire  v.  Leadville 
Improvement  Co.,  6  Colo.  413.  See  English  v.  Johnson,  17  Cal.  117,  76  Am. 
Dec.  574.  A  miner's  rule  restricting  the  number  of  claims  a  person  may  buy 
is  void.  Prosser  v.  Parks,  18  Cal.  47. 

6«?B.  &  C.  Comp.  Or.  §  3974. 

•»  See  Aliens,  chapter  XI,  §  47,  infra. 

COST.MIN.L.— 11 


162  DISCOVERT   OP   LODE   AND  PLACER   CLAIMS.  (Ch.  10 


THE  DISCOVERY  OF  PLACER  CLAIMS. 

46.  Discovery  is  as  essential  to  the  validity  of  placer  claims  as  to  that 
of  lode  claims.  There  must  be  a  discovery  for  each  claim; 
but,  where  a  location  of  16O  acres  as  a  placer  is  made  by  an 
association  of  persons,  one  discovery  will  hold  the  whole  16O 
acres,  subject  to  inquiry  by  the  land  department  into  the 
mineral  character  of  the  different  included  acres. 

In  the  case  of  placers,  as  in  the  case  of  lodes,  there  must  be  a  dis- 
covery, and,  as  in  the  case  of  lode  locations,  the  discovery  may  fol- 
low location.60  Indications  of  mineral  will  not  do  in  the  case  of  plac- 
ers, any  more  than  "float"  will  in  the  case  of  lode  claims.61  As  be- 
tween two  competing  locators,  the  first  to  make  a  discovery  will  be 
protected,  unless  he  has  done  something  to  estop  him  from  claiming 
the  benefit  of  the  discovery.62  "Without  a  valid  discovery  of  mineral 
within  the  limits  of  the  claim,  there  could  be  no  valid  location  of  the 
ground  as  a  placer  mining  claim.  *  *  *  Whether  or  not  the  find- 
ing of  seepages  of  oil  and  its  residuum  upon  a  given  piece  of  public 
land  and  upon  the  lands  adjoining  it  on  different  sides,  and  the  find- 
ing thereon  of  shale  and  oil-bearing  sand  rock  of  a  character  similar 
to  that  in  which  petroleum  in  large  and  paying  quantities  had  been 
found  and  developed  in  the  vicinity,  which  veins  and  strata  extend  to 
and  across  the  ground  in  question  [amounts  to  a  discovery],  manifestly 
depends  upon  the  application  and  true  construction  of  the  laws  of  the 
United  States."  63 

While  the  court  in  the  case  just  quoted  from  held  that  a  bill  which 
pleaded  a  discovery  as  above  was  good  on  demurrer,  the  case  of  Mil- 
ler v.  Chrisman  6*  shows  what  is  really  needed  in  the  way  of  discov- 
ery. With  reference  to  the  discovery  of  oil,  the  California  court  point- 
ed out  that  the  testimony  was  "that  Barieau  had  walked  over  the  land 
at  the  time  he  posted  his  notice,  and  had  discovered  'indications'  of 
petroleum.  Specifically  he  says  that  he  saw  a  spring,  and  'the  oil 
comes  out  and  floats  over  the  water  in  the  summer  time,  when  it  is 

> 

eo  WEED  v.  SNOOK,  144  Cal.  439,  77  Pac.  1023;  Barnette  v.  Freeman, 
2  Alaska,  286;  New  England  &  Coalinga  Oil  Co.  v.  C'ongdon  (Cal.)  92  Pac. 
180;  Bay  v.  Oklahoma  Southern  Gas,  Oil  &  Min.  Co.,  13  Okl.  425,  73  Pac. 
936. 

ei  See  Steele  v.  Tanana  Mines  R.  Co.,  148  Fed.  678,  78  C.  C.  A.  412; 
Charlton  v.  Kelly,  2  Alaska,  532. 

62  Thompson  v.  Burk,  2  Alaska,  249. 

63  NEVADA  SIERRA  OIL  CO.  v.   MILLER  (C.  C.)  97  Fed.  681,  688,  689. 
e*  MILLER  v.  CHRISMAN,   140  Cal.  440,   73  Pac.   1083,  74  Pac.  444,  98 

Am.   St.   Rep.  63,   affirmed  Chrisman  v.  Miller,  197  U.   S.  313,  25  Sup.  Ct. 
468,  49  L.  Ed.  770. 


§  46)  DISCOVERY   OP   PLACER  CLAIMS.  163 

hot.  In  June,  1895,  there  was  a  little  water  with  the  oil  and  a  little 
oil  with  the  water  coming  out.  It  was  dripping  over  a  rock  about 
two  feet  high.  There  was  no  pool.  It  was  just  dripping;  a  little 
water  and  oil,  not  much  water/  This  is  all  of  the  'discovery' 
which  it  is  even  pretended  was  made  under  the  Barieau  loca- 
tion, and  we  think  it  clear  that  such  testimony  does  not  establish  a 
discovery  within  the  meaning  of  the  law.  To  constitute  a  discovery, 
the  law  requires  something  more  than  conjecture,  hope,  or  even  indica- 
tions. The  geological  formation  of  the  country  may  be  such  as 
scientific  research  and  practical  experience  have  shown  to  be  likely  to 
yield  oil  in  paying  quantities.  Taken  with  this,  there  may  be  other 
surface  indications,  such  as  'seepage'  of  oil.  All  these  things  combined 
may  be  sufficient  to  justify  the  expectation  and  hope  that,  upon  driving 
a  well  to  sufficient  depth,  oil  may  be  discovered ;  but  one  and  all  they 
do  nor,  in  and  of  themselves,  amount  to  a  discovery.  *  *  *  While, 
perhaps,  it  would  be  stating  it  too  broadly  to  say  that  no  case  can  be 
imagined  where  a  surface  discovery  may  be  made  of  oil  sufficient  to 
fill  the  requirements  of  the  statute,  yet  it  is  certainly  true  that  no  such 
case  has  ever  been  presented  to  our  attention,  and  that  in  the  nature 
of  things  such  a  case  will  seldom,  if  ever,  occur."  6B 

In  the  same  case  the  Supreme  Court  of  the  United  States  added: 
"It  is  true  that,  when  the  controversy  is  between  two  mineral  claim- 
ants, the  rule  respecting  the  sufficiency  of  a  discovery  of  mineral  is 
more  liberal  than  when  it  is  between  a  mineral  claimant  and  one  seek- 
ing to  make  an  agricultural  entry,  for  the  reason  that,  where  land  is 
sought  to  be  taken  out  of  the  category  of  agricultural  lands,  the  evi- 
dence of  its  mineral  character  should  be  reasonably  clear,  while  in 
respect  to  mineral  lands,  in  a  controversy  between  claimants,  the  ques- 
tion is  simply  which  is  entitled  to  priority.66  That,  it  is  true,  is  the 

« 5  Miller  v.  Chrisman,  140  Cal.  440,  445,  446,  73  Pac.  1083,  74  Pac.  444, 
98  Am.  St.  Rep.  63.  See  Bay  v.  Oklahoma  Southern  Gas,  Oil  &  Min.  Co., 
13  Okl.  425,  73  Pac.  936.  "It  is  the  common  experience  of  persons  of  or- 
dinary intelligence  that  petroleum  in  valuable  quantities  is  not  found  on 
the  surface  of  the  ground  nor  is  it  found  in  paying  quantities  seeping  from 
the  earth.  Valuable  oil  is  found  by  drilling  or  boring  into  the  interior  of 
the  earth,  and  either  flows  or  is  pumped  to  the  surface;  and,  until  some 
body  or  vein  has  been  discovered  from  which  the  oil  can  be  brought  to  the 
surface,  it  cannot  be  considered  of  sufficient  importance  to  warrant  a  loca- 
tion under  the  mineral  laws."  Bay  v.  Oklahoma  Southern  Gas,  Oil  &  Min. 
Co.,  13  Okl.  425,  73  Pac.  936,  940. 

ee  See  Bevis  v.  Markland  (C.  C.)  130  Fed.  226,  where  a  placer  claimant  fail- 
ed to  recover  mineral  land  from  a  prior  lode  claimant,  because  the  placer 
claimant  "failed  to  prove  by  a  preponderance  of  the  evidence,  or  any  affirma- 
tive evidence,  that  there  is  not  within  the  disputed  ground  a  vein  of  metallic 
ore  such  as  may  be  located  only  as  a  vein  or  lode  claim." 


164  DISCOVERT   OF   LODE   AND   PLACER    CLAIMS.  (Ch.   10 

case  before  us.  But  even  in  such  a  case,  as  shown  by  the  authorities 
we  have  cited,  there  must  be  such  a  discovery  of  mineral  as  gives 
reasonable  evidence  of  the  fact  either  that  there  is  a  vein  or  lode  car- 
rying the  precious  mineral,  or,  if  it  be  claimed  as  placer  ground,  that 
it  is  valuable  for  such  mining.  Giving  full  weight  to  the  testimony 
of  Barieau,  we  should  not  be  justified,  even  in  a  case  coming  from  a 
federal  court,  in  overthrowing  the  finding  that  he  made  no  discovery. 
There  was  not  enough  in  what  he  claims  to  have  seen  to  have  justified 
a  prudent  person  in  the  expenditure  of  money  and  labor  in  exploitation 
for  petroleum.  It  merely  suggested  a  possibility  that  the  ground  con- 
tained oil.  sufficient  to  make  it  'chiefly  valuable  therefor/  If  that  be 
true  were  the  case  one  coming  from  a  federal  court,  a  fortiori  must 
it  be  true  when  the  case  comes  to  us  from  a  state  court,  whose  findings 
of  fact  we  have  so  often  held  to  be  conclusive."  6T 

It  is  not  necessary  to  a  discovery,  however,  that  it  should  be  shown 
with  reasonable  clearness  that  for  the  labor  and  capital  expended  in 
working  the  placer  it  would  yield  a  reasonable  profit.  68 

Pedis  Possessio. 

With  reference  to  placers,  and  particularly  with  reference  to  oil 
and  gas  locations,  the  necessity  of  protecting  a  prospector  in  his  pos- 
session prior  to  actual  discovery  is  greater  even  than  in  the  case  of 
lode  claims.69  In  Chrisman  v.  Miller  it  was  stated  by  the  California 
court  that  one  who  has  in  good  faith  fulfilled  the  various  acts  of  location 
of  lands  as  oil  lands,  but  has  not  yet  made  a  discovery,  and  remains  in 
possession,  "and  with  due  diligence  prosecutes  his  work  toward  a  dis- 
covery, is  fully  protected  against  all  forms  of  forcible,  fraudulent,  sur- 
reptitious, or  clandestine  entries  and  intrusions  upon  his  possession."  ™ 
Upon  that  as  a  basis  a  California  commissioners'  decision  says :  "And 
we  regard  the  law  as  settled  that  while  a  locator,  who  has  made  his  lo- 
cation, is  engaged  in  good  faith  in  prospecting  it  for  minerals,  and  com- 
plies with  the  laws  as  to  expenditures,  and  is  in  possession,  the  land  is 
not  open  for  location  by  others.  In  case  of  petroleum  lands  the  discov- 
ery cannot,  in  most  cases,  be  made  except  by  considerable  labor  and  ex- 
pense in  sinking  wells.  In  making  the  location  the  locator  necessarily 
takes  into  consideration  surface  indications,  geological  formations, 

«7  CHRISMAN  v.  MILLER,  197  U.  S.  313,  323,  25  Sup.  Ct.  468,  49  L.  Ed.  770. 

«s  Cascaden  v.  Bartolis,  146  Fed.  739,  77  C.  C.  A.  496. 

e»  See  Bay  v.  Oklahoma  Southern  Gas,  Oil  &  Min.  Co.,  13  Okl.  425,  73  Pac. 
936.  Merely  placing  a  tent,  a  few  tools,  and  a  small  supply  of  provisions  up- 
on a  placer  mining  claim  does  not  of  itself  constitute  taking  actual  possession 
thereof.  Acts  of  mining  are  necessary.  Charlton  v.  Kelly,  2  Alaska,  532. 

TO  MILLER  v.  CHRISMAN,  140  Cal.  440,  447,  73  Pac.  1083,  74  Pac.  444,  98 
Am.  St.  Rep.  63;  Phillips  v.  Brill  (Wyo.)  95  Pac.  856. 


§  46)  DISCOVERY   OF  PLACER  CLAIMS.  165 

proximity  to  known  mines  or  wells  producing  oil.  He  must  make  his 
location  in  good  faith,  and  use  proper  diligence  to  make  discovery  of 
oil.  If  he  does  not  do  so,  he  will  lose  his  rights  under  his  location  as 
to  parties  who  may  afterwards  in  good  faith  acquire  rights.  But  where 
the  locator  is  in  possession  under  his  location,  and  is  actively  at  work, 
through  his  lessees  or  otherwise,  and  expending  money  for  the  purpose 
of  discovering  oil,  his  rights  cannot  be  forfeited  to  third  parties,  who 
attempt  to  make  locations  under  such  circumstances.  The  law  must  be 
given  a  liberal  and  equitable  interpretation,  with  a  view  of  protecting 
prior  rights  acquired  in  good  faith."  71 

But  while  very  considerable  labor  and  expense  is  necessarily  ex- 
pended in  making  an  oil  or  gas  discovery,  and  in  consequence  the  oil 
or  gas  prospector  should  be  dealt  with  liberally  on  the  question  of  when 
a  discovery  has  been  made,  and  should  be  given  as  large  as  possible  a 
pedis  possessio,  it  still  remains  true  that  the  first  discoverer  who  can  lo- 
cate peaceably  must  be  given  priority  over  prior  prospectors. 72  What 
we  found  to  be  true  of  lode  claims  in  this  regard  must  also  be  true  of 
placers.  Moreover,  it  is  true  in  placer  mining,  as  in  lode  mining,  that 
a  discovery  to  sustain  a  location  may  be  made,  although  what  is  discov- 
ered will  not  pay  to  work  at  the  start.73  The  line  must  be  drawn  be- 
tween indications  disclosing  merely  a  possibility  of  oil,  where,  of  course, 
nothing  has  really  been  discovered,  and  the  ascertained  presence  of  oil 
in  a  situation  to  justify  a  prudent  person  in  the  expenditure  of  money 
and  labor  in  exploitation  for  petroleum.74  Whether  a  discovery  has 
been  made  in  a  given  case  is,  of  course,  a  question  of  fact  under  all  the 
circumstances  of  that  case.  It  is  not  possible,  however,  to  locate  as 
placer  any  lands  which  are  chiefly  valuable  for  ores  found  in  them  in 
lodes.75 

71  WEED  v.  SNOOK,  144  Cal.  439,  77  Pac.  1023,  1026;   Hanson  v.  Oraig  (C. 
C.  A.)  161  Fed.  861.     See  New  England  &  Coalinga  Oil  Co.  v.  Congdon  (Cal.) 
92  Pac.  180. 

72  Whiting  v.  Straup  (Wyo.)  95  Pac.  849;   Redden  v.  Harlan,  2  Alaska,  402. 
But  see  Hanson  v.  Oraig  (C.  C.  A.)  161  Fed.  881.    Prior  to  a  discovery  by  the 
locator,  others  may  by  legal  means  acquire  title  from  the  United  States.    Olive 
Land  &  Development  Co.  v   Olmstead  (C.  C.)  103  Fed.  568.    But  in  Biglow  v. 
Conradt  (C.  C.  A.)  159  Fed.  868,  an  extension  of  boundaries  not  based  on  a 
discovery  in  the  added  ground  was  not  allowed  to  cover  land  embraced  in  an 
attempted  location  in  the  possession  of  locators  who  about  two  months  later 
made  their  discovery. 

TS  See  NEVADA  SIERRA  OIL  CO.  v.  HOME  OIL  CO.  (C.  C.)  98  Fed.  673, 
676;  Gregory  v.  Pershbaker,  73  Cal.  109,  14  Pac.  401. 

74  CHRISMAN  v.  MILLER,  197  U.  S.  313,  323,  25  Sup.  Ct.  468,  49  L.  Ed. 
770 ;  New  England  &  Coalinga  Oil  Co.  v.  Congdon  (Cal.)  92  Pac.  180. 

7  5  Buffalo  Zinc  &  Copper  Co.  v.  Crump,  70  Ark.  525,  69  S.  W.  572,  576,  91 
Am.  St  Rep.  87.  See  Bevis  v.  Markland  (C.  C.)  130  Fed.  226. 


166  DISCOVERY   OF   LODE   AND   PLACER   CLAIMS.  (Ch.  10 

Number  of  Acres  for  One  Discovery. 

The  question  of  discovery  in  the  case  of  placers  has  been  complicated 
by  a  question  as  to  the  necessity  of  separate  discoveries  on  each  20  acres 
of  a  joint  location  of  160  acres.  In  placers  the  unit  of  a  placer  location 
is  20  acres,  "and  two  or  more  persons,  or  association  of  persons,  having 
contiguous  claims  of  any  size,  *  *  *  may  make  joint  entry  there- 
of; but  no  location  of  a  placer  claim  *  *  *  shall  exceed  one  hun- 
dred and  sixty  acres  for  any  one  person  or  association  of  persons."  76 
The  land  department  for  a  long  time  held  that,  where  an  association  of 
eight  persons  located  160  acres  as  a  placer,  there  must  be  a  separate  dis- 
covery for  each  20  acres; 77  but  that  ruling  has  been  reversed,  and  one 
discovery  is  now  enough  for  one  joint  location.78  The  land  department 
still  insists,  however,  that  "while  a  single  discovery  is  sufficient  to  au- 
thorize the  location  of  a  placer  claim,  and  may,  in  the  absence  of  any 
claim  or  evidence  to  the  contrary,  be  treated  as  sufficiently  establishing 
the  mineral  character  of  the  entire  claim  to  justify  the  patenting  there- 
of, such  single  discovery  does  not  conclusively  establish  the  mineral 
character  of  all  the  land  included  in  the  claim,  so  as  to  preclude  fur- 
ther inquiry  in  respect  thereto."  79 

Number  of  Locations  for  Hack  Discoverer. 

Except  where  special  provision,  such  as  exists  in  the  case  of  coal 
lands,  is  made  by  Congress,  as  many  placer  claims  may  be  located  by 
one  individual  as  separate  discoveries  will  warrant. 

76  Rev.  St.  U.  S.  §  2330  (U.  S.  Comp.  St.  1901,  p.  1432). 

77  Ferrell  v.  Hoge,  18  Land  Dec.  Dep.  Int  81;   Union  Oil  Co.,  23  Land  Dec. 
Dep.  Int.  222. 

78  Union  Oil  Co.  (on  review)  25  Land  Dec.  Dep.  Int.  351;    Terrell  v.  Hoge, 
27  Land  Dec.  Dep.  Int.  129;    Miller  v.  Ohrisman,  140  Cal.  440,  73  Pac.  1083, 
74  Pac.  444,  98  Am    St.  Rep.  63 ;  Whiting  v.  Straup  (Wyo.)  95  Pac.  849. 

79  Ferrell  v.  Hoge  (on  review)  29  Land  Dec.  Dep.  Int.  12,  15.    A  discovery 
and  location  on  80  acres  will  not  justify  taking  in  another  and  adjoining  80 
acres  as  a  consolidated  claim  of  160  acres.    Weed  v.  Snook,  144  Cal.  439,  77 
Pac.  1023. 


§  47)  WHO   MAY  LOCATE   MINING   CLAIMS.  167 

CHAPTER  XI. 
WHO  MAY  AND  WHO  MAY  NOT  LOCATE  MINING  CLAIMS. 

47.  Aliens. 

48.  Land  Office  Employe's. 

49.  Corporations. 

50.  Minors. 

51.  Agents. 

"All  valuable  mineral  deposits  in  lands  belonging  to  the  United 
States,  both  surveyed  and  unsurveyed,  are  hereby  declared  to  be  free 
and  open  to  exploration  and  purchase,  and  the  lands  in  which  they  are 
found  to  occupation  and  purchase,  by  citizens  of  the  United  States  and 
those  who  have  declared  their  intention  to  become  such,  under  regula- 
tions prescribed  by  law,  and  according  to  the  local  customs  or  rules  of 
miners  in  the  several  mining  districts,  so  far  as  the  same  are  applicable 
and  not  inconsistent  with  the  laws  of  the  United  States."  Rev.  St.  U. 
S.  §  2319  (U.  S.  Comp.  St.  1901,  p.  1424). 

Before  we  take  up  the  acts  of  location,  it  is  desirable  to  inquire 
who  may  perform  those  acts.  Anybody  may  make  a  discovery,  but 
only  citizens  of  the  United  States  and  those  who  have  declared  their 
intention  to  be  such  are  expressly  authorized  to  locate  mining  claims.1 
We  shall  therefore  take  up  first  the  question  of  location  by  an  alien, 
and  then  discuss  a  location  by  a  land  office  employe,  by  a  corporation, 
by  a  minor,  and  by  an  agent. 

ALIENS. 

47.  While  aliens  are  not  authorized  to  locate  mining  claims,  an, 
alien's  location  may  be  questioned  only  in  an  adverse  suit 
where  an  alien  is  applying  for  patent,  or  in  direct  proceed- 
ings brought  by  the  United  States  while  the  alien  still  owns1 
the  claim.  The  question  of  citizenship  is  an  issue  in  an  ad- 
verse suit  only  because  the  United  States  is  a  silent  party  to 
the  suit,  and  the  alien  may  make  his  location  valid  ab  initio 
by  taking  out  his  first  naturalization  papers  after  suit  is  com- 
menced. 

Effect  of  Location  by  an  Alien. 

Whatever  may  have  been  the  intention  of  the  framers  of  the  act 
of  1872  (Act  May  10,  1872,  c.  152,  §  3,  17  Stat.  91  [U.  S.  Comp. 

i  Rev.  St.  U.  S.  §  2319  (U.  S.  Comp.  St.  1901,  p.  1424).  That  certain  Filipinos 
may  now  be  naturalized,  see  opinion,  37  Land  Dec.  Dep.  Int.  (advance  sheets)  86. 
Married  women  who  are  citizens  may,  of  course,  locate  mining  claims. 


168  WHO   MAY  LOCATE   MINING   CLAIMS.  (Ch    11 

St.  1901,  p.  1425]),  with  reference  to  the  point,  it  is  now  well  settled 
that  a  location  by  an  alien  or  the  transfer  of  an  existing  location  to 
him  is  valid  except  against  direct  attack  by  the  government  while 
'the  alien  still  owns  the  land,  or  except  when  questioned  in  an  ad- 
verse suit  where  the  alien  is  applying  for  patent  or  is  adversing.2 
Moreover,  if  pending  the  trial  of  the  adverse  suit  the  alien  takes  out 
his  first  naturalization  papers,  his  location  becomes  valid  ab  initio.* 
Except  in  adverse  suits,  and  except  in  direct  proceedings  brought  by 
the  United  States  government,  the  citizenship  of  the  parties  need 
neither  be  alleged  nor  proved,4  unless,  as  in  the  case  of  the  federal 
courts,  such  allegation  and  proof  are  needed  to  give  the  court  juris- 
diction. It  seems  fair  to  say  that  even  in  adverse  suits  a  presump- 
tion exists  that  a  resident  locator  is  a  citizen.6  In  any  event,  the  citi- 

2  McKINLEY  CREEK  MINING  CO.  v.  ALASKA  UNITED  MIN.  CO.,  183 
U.  S.  563,  22  Sup.  Ct.  84,  46  L.  Ed.  331 ;  TORNANSES  v.  MELSING,  109  Fed. 
710,  47  C.  C.  A.  596 ;  Stewart  v.  Gold  &  Copper  Co.,  29  Utah,  443,  82  Pac.  475, 
110  Am.  St.  Rep.  719;  BILLINGS  v.  ASPEN  MINING  &  SMELTING  CO., 
51  Fed.  338,  2  C.  C.  A.  252;  Id.,  52  Fed.  250,  3  C.  C.  A.  69;  LONE  JACK 
MINING  CO.  v.  MEGGINSON,  82  Fed.  89,  27  O.  C.  A.  63;  Providence  Gold 
Mining  Co.  v.  Burke,  6  Ariz.  323,  57  Pac.  641;  Gorman  Mining  Co.  v.  Alex- 
ander, 2  S.  D.  557,  51  N.  W.  346.  See  Territory  v.  Lee,  2  Mont.  124.  The  doc- 
trine announced  in  Wilson  v.  Triumph  Consol.  Min.  Co.,  19  Utah,  66,  56  Pac. 
300,  75  Am.  St.  Rep.  718,  and  in  Golden  Fleece  Gold  &  Silver  Min.  Co.  v.  Cable 
Consol.  Gold  &  Silver  Min.  Co.,  12  Nev.  312,  that  a  citizen  may  relocate  land 
located  by  an  alien  and  still  held  by  the  latter,  if  only  the  relocation  is  peace- 
able, cannot  be  supported.  TORNANSES  v.  MELSING,  109  Fed.  710,  47  C.  C. 
A.  596.  Compare  a  similar  ruling  in  regard  to  a  state  statute  requiring  for- 
eigners to  pay  a  license  fee  for  the  privilege  of  mining.  People  v.  Naglee,  1 
Cal.  232,  52  Am.  Dec.  312 ;  Mitchell  v.  Hagood,  6  Cal.  148. 

s  LONE  JACK  MINING  CO.  v.  MEGGINSON,  82  Fed.  89,  27  C.  C.  A.  63; 
Ferguson  v.  Neville,  61  Cal.  356;  Gorman  Mining  Co.  v.  Alexander,  2  S.  D. 
557,  51  N.  W.  346 ;  Id.,  3  S.  D.  3,  51  N.  W.  349 ;  MANUEL  v.  WIULFF,  152  U. 
S.  507,  14  Sup.  Ct.  651,  38  L.  Ed.  532 ;  Shea  v.  Nilima,  133  Fed.  209,  66  C.  C. 
A.  2G3.  See  Croesus  Mining,  M.  &  S.  Co.  v.  Colorado  Land  &  M.  Co.  (O.  C.)  19 
Fed.  78 ;  Anthony  v.  Jillson,  83  Cal.  296,  23  Pac.  419. 

*  Harris  v.  Kellogg,  117  Cal.  484,  49  Pac.  708 ;  Buckley  v.  Fox,  8  Idaho,  248, 
67  Pac.  659 ;  Gruwell  v.  Rocca,  141  Cal.  417,  74  Pac.  1028.  In  Buckley  v.  Fox, 
supra,  the  state  statute  authorized  locations  by  aliens  not  of  Mongolian  de- 
scent. Such  a  statute  would  seem  ineffective  to  prevent  direct  proceedings  by 
the  United  States. 

s  JANTZON  v.  ARIZONA  COPPER  CO.,  3  Ariz.  6,  20  Pac.  93 ;  Garfleld  Min. 
&  Mill.  Co.  v.  Hammer,  6  Mont.  53,  8  Pac.  153.  The  issue  of  citizenship  is  prop- 
erly raised  in  an  adverse  suit,  as  it  is  in  effect  made  on  behalf  of  the  govern- 
ment. MATLOCK  v.  STONE,  77  Ark.  195,  91  S.  W.  553.  See  McFeters  v. 
Pierson,  15  Colo.  201,  206,  207,  24  Pac.  1076,  22  Am.  St.  Rep.  388;  Tonopah 
Fraction  Mining  Co.  v.  Douglass  (C.  C.)  123  Fed.  936,  941 ;  Wilson  v.  Triumph 
Consol.  Min.  Co.,  19  Utah,  66,  56  Pac.  300,  75  Am.  St  Rep.  718. 

For  a  case  showing  on  how  slight  evidence  a  court  will  find  citizenship,  see 
Strickley  T.  Hill,  22  Utah,  257,  62  Pac.  893,  83  Am.  St  Rep.  786. 


§  47)  ALIENS.  160 

zenship  of  a  locator  is  immaterial,  except  where  he  has  not  parted 
with  title  prior  to  the  raising  of  the  question  in  an  adverse  suit,  where 
the  question  of  citizenship  is  involved,  or  prior  to  direct  proceedings 
brought  by  the  United  States  government.6 

Special  Acts  about  Aliens. 

What  is  said  above  applies  only  to  the  requirement  of  Rev.  St. 
U.  S.  §  2319  (U.  S.  Comp  St.  1901,  p.  1424).  Under  the  federal 
alien  act  of  March  3,  1887,7  as  amended  by  the  act  of  March  2,  1897,8 
aliens  may  acquire  and  hold  by  purchase  in  the  United  States  ter- 
ritories possessory  as  well  as  patented  claims.  Whether  that  permits 
an  alien  to  locate  in  the  United  States  territories  a  mining  claim  that 
will  be  valid  against  the  government  on  direct  attack  or  in  adverse 
suits  is  as  yet  undetermined. 9  So  by  the  act  of  May  14,  1898. 
native-born  citizens  of  the  Dominion  of  Canada  are  accorded  the  same 
mining  rights  and  privileges  in  Alaska  as  Canada  accords  in  British 
Columbia  and  the  Northwest  Territory  to  citizens  of  the  United 
States. 10 

Effect  of  Patent  on  Rights  of  Aliens.  , 

After  a  claim  has  been  patented  to  a  citizen,  the  question  of 
whether  it  may  be  acquired  by  an  alien  depends  on  the  state  laws. 
A  patent  issued  to  a  citizen  who  took  in  trust  for  an  alien  is  doubt- 
less subject  to  direct  attack  by  the  United  States  government,  except 
where  prior  to  the  attack  title  is  conveyed  to  innocent  purchasers.11 

e  If  a  citizen  and  an  alien  jointly  locate  a  claim  and  convey  it  to  a  citizen, 
the  latter  gets  a  valid  title.  North  Noonday  Min.  Co.  v.  Orient  Min.  Co.  (C. 
C.)  1  Fed.  522,  6  Sawy.  299;  Wilson  v.  Triumph  Consol.  Min.  Co.,  19  Utah, 
66,  56  Pac.  300,  75  Am.  St.  Rep.  718 ;  Providence  Gold  Mining  Co.  v.  Burke, 
6  Ariz.  323,  57  Pac.  647 ;  Strickley  v.  Hill,  22  Utah,  257,  62  Pac.  893,  83  Am. 
St.  Rep.  786.  See  Stewart  v.  Gold  &  Copper  Co.,  29  Utah,  443,  82  Pac.  475, 
110  Am.  St.  Rep.  719. 

The  interest  of  the  citizen  co-locator  is,  of  course,  valid,  even  against  the 
government,  unless  he  colludes  with  the  alien.  Golden  Fleece  Gold  &  Silver 
Min.  Co.  v.  Cable  Consol.  Gold  &  Silver  Min.  Co.,  12  Nev.  312.  Query  as  to 
the  effect  of  knowledge  that  one's  co-locator  is  an  alien? 

7  24  Stat.  476,  c.  340,  §<  1  (U.  S.  Comp.  St.  Supp.  1907,  p.  776). 

«  29  Stat.  618,  c.  363,  §  2  (U.  S.  Comp.  St.  Supp.  1907,  p.  778). 

9  The  land  department  thinks  that  an  alien  in  the  territories  is  given  by  the 
act  of  March  2,  1897,  no  right  to  occupy  or  purchase  from  .the  government  any 
mining  claims.     See  opinion,  28  Land  Dec.  Dep.  Int.  178. 

10  30  Stat.  415,  c.  299,  §  13  (U.  S.  Comp.  St.  1901,  p.  1424).    According  to  the 
land  department  this  act  "never  has  been  operative  for  the  reason  that  the 
only  mining  rights  and  privileges  granted  to  any  person  by  the  laws  of  the 
Dominion  of  Canada  are  those  of  leasing  mineral  lands  upon  the  payment  of 
a  stated  royalty,  and  the  mining  laws  of  the  United  States  make  no  provision 
for  such  leases."    Instructions,  32  Land  Dec.  Dep.  Int.  424,  445. 

11  Justice  Min.  Co.  v.  Lee,  21  Colo.  260,  40  Pac.  444,  52  Am.  St  Rep.  216. 


170  WHO   MAY   LOCATE    MINING   CLAIMS.  (Ch.  11 

Where  a  claim  has  been  located  by  a  citizen,  and  he  dies  leaving- 
an  alien  heir,  the  latter  is  in  the  situation  of  an  alien  locator.  His 
claim  is  good  against  all  the  world  except  the  United  States.12 


LAND    OFFICE    EMPLOYES. 

48.  General  land  officers,  clerks,  and  employes  are  prohibited  by  stat- 
ute from  purchasing  or  becoming  interested  in  the  purchase 
of  public  lands.  While  one  state  decision  intimates  that  a 
location  by  such  an  employe  is  absolutely  void,  and  hence  can 
pass  no  title  to  an  innocent  purchaser,  it  is  believed  that  such 
a  location  is  only  voidable,  and  that  innocent  purchasers  will 
be  protected.  Whether  deputy  United  States  mineral  survey- 
ors are  covered  by  the  above-mentioned  statute  is  a  matter  on- 
which  there  are  conflicting  decisions.  The  better  view  seems 
to  be  that  they  are  covered  by  it. 

It  has  been  held  in  a  Utah  case  that  under  Rev.  St.  U.  S.  §  452 
(U.  S.  Comp.  St.  1901,  p.  257),  prohibiting  officers,  clerks,  and  em- 
ployes of  the  General  Land  Office  from  purchasing  or  becoming  in- 
terested in  the  purchase  of  public  lands,  the  locating  of  a  mining  claim 
by  a  deputy  mining  surveyor  of  the  government  is  void,  and  he  can 
convey  no  rights  in  the  claim  to  another.13  This  is  but  a  state  deci- 
sion, for  the  United  States  Supreme  Court,  when  the  case  came  before 
it,  avoided  the  point  by  basing  its  decision  on  the  ground  that  the  land 
was  not  open  to  location.14  The  whole  tenor  of  the  Utah  decision 
is  that  the  location  by  the  deputy  mineral  surveyor  is  absolutely  void, 
whereas  the  protection  of  innocent  purchasers  requires  that  a  rule 
like  that  applicable  to  locations  by  aliens  be  applied.  It  is  upon  this 
ground  only  that  a  recent  Nevada  decision15  upholding  a  location  by 
a  deputy  mineral  surveyor  can  be  supported.  While  the  court  seems 
to  have  been  in  error  in  the  last-mentioned  case  in  saying  that  deputy 
United  States  mineral  surveyors  are  not  covered  by  the  above-mention- 
ed statute,  nobody  but  the  government  could  possibly  object  to  a  lo- 
cation by  a  deputy  mineral  surveyor,  and  the  court  was  therefore 
right  in  its  decision,  but  erred  in  the  reason  given  for  it.  The  dis- 
senting judge  in  the  case  being  discussed  seems  right  in  adhering  "to 
the  broader  construction  that  clerks,  officers,  and  employes  in  the 
General  Land  Office  include  officers,  clerks  and  employes  in  the  offices 

12  BILLINGS  v.  ASPEN  MINING  &  SMELTING  CO.,  51  Fed.  338,  2  0.  C. 
A.  252,  52  Fed.  250,  3  C.  C.  A.  69;  LOHMANN  v.  HELMER  (C.  C).  104  Fed. 
178. 

is  LAVAGNINO  v.  UHLIG,  26  Utah,  1,  71  Pac.  1046,  99  Am.  St.  Rep.  808. 

i*  Lavagnino  v.  Uhlig,  198  U.  S.  443,  25  Sup.  Ct  716,  49  L.  Ed.  1119. 

IB  Hand  v.  Oook  (Nev.)  92  Pac.  3. 


§  4:9)  CORPORATIONS.  171 

of  the  surveyors  general  and  the  local  land  offices,  which  are  merely 
arms  or  branches  of  the  General  Land  Office,"  18  but  he  also  erred 
in  regarding  the  location  as  absolutely  void. 

The  land  department  properly  refused  to  allow  a  mineral  entry 
by  a  deputy  United  States  mineral  surveyor  who  was  interested  in 
the  mining  claim  at  the  time  of  survey  or  of  application  for  patent,17 
and  doubtless  will  continue  to  do  so  until  the  matter  is  regulated  by 
further  federal  legislation,  or  settled  by  a  decision  of  the  United 
States  Supreme  Court.18 


CORPORATIONS. 

49.  Mining  locations  may  legally  be  made  by  corporations  created 
under  the  laws  of  the  United  States  or  of  a  state  or  territory 
of  the  United  States.  Other  corporations  are  aliens,  and  gov- 
erned by  those  rules  in  regard  to  locations  by  aliens  which  can 
apply  to  corporations. 

It  would  seem  that  a  corporation  is  only  one  person,  and  not  "an 
association  of  persons,"  so  far  as  the  placer  mining  laws  are 
concerned. 

A  corporation  created  under  the  laws  of  the  United  States,  or  of 
a  state  or  territory  of  the  United  States,  and  having  corporate  powers 
which,  as  such,  permit  it  to  make  a  mining  location,  is  competent 
to  make  such  a  location  by  itself  or  to  join  with  others  in  making 
one.19  Even  if  a  location  is  ultra  vires,  that  fact  still  leaves  the  loca- 
tion like  an  ultra  vires  purchase  of  land,  and  therefore  it  is  valid  until 
assailed  in  a  direct  proceeding  brought  by  the  state  creating  the  cor- 
poration.20 A  corporation  organized  under  the  laws  of  a  state  or 
territory  of  the  United  States  is  a  citizen  of  the  United  States  within 
the  meaning  of  the  mining  statutes,  and  therefore  may  locate,  pur- 

16  Hand  v.  Cook  (Nev.)  92  Pac.  12.    Compare  Prosser  v.  Finn,  208  U.  S.  67, 

28  Sup.  Ct.  225,  227,  52  L.  Ed.  392,  where  special  agents  of  the  General  Land 
Office  were  held  to  be  within  the  statute  because  "they  have  official  connection 
with  the  General  Land  Office  and  are  under  its  supervision  and  control  with 
respect  to  the  administration  of  the  public  lands." 

17  Floyd  v.  Montgomery,  26  Land  Dec.  Dep.  Int.  122;    Frank  A.  Maxwell, 

29  Land  Dec.  Dep.  Int.  76;    W.  H.  Leffingwell,  30  Land  Dec.  Dep.  Int.  139. 
The  deputy  mineral  surveyor's  appointment  was  revoked  for  that  reason  in 
Seymour  K.  Bradford,  36  Land  Dec.  Dep.  Int.  61. 

is  As  the  matter  has  been  brought  to  the  attention  of  Congress,  it  will  prob- 
ably be  settled  by  legislation. 

i»  McKINLEY  v.  WHEELER,  130  U.  S.  630,  9  Sup.  Ct  638,  32  L.  Ed.  1048; 
Thomas  v.  Chisholm,  13  Colo.  105,  21  Pac.  1019. 

20  Rose  No.  1  and  Rose  No.  2  Lode  Claims,  22  Land  Dec.  Dep.  Int.  83.  See 
Union  Nat  Bank  of  St  Louis  v.  Matthews,  98  U.  S.  621,  628,  25  L.  Ed.  188. 


172  WHO   MAY   LOCATE   MINING   CLAIMS.  (Ch.  11 

* 

chase,  and  hold  a  mining  claim.21  The  only  question  in  regard  to 
such  a  corporation  has  been  whether  all  of  the  incorporators  had  to 
be  citizens  of  the  United  States  for  the  corporation  to  be  a  citizen. 
That  question  has  arisen  because  in  McKinley  v.  Wheeler  22  the  Su- 
preme Court  of  the  United  States  said  that  a  state  corporation,  "all 
of  whose  members  are  citizens  of  the  United  States,"  could  hold  a 
mining  claim.  That  dictum,  however,  does  not  say  that  all  must  be 
citizens,  and  seems  satisfactorily  met  in  Doe  v.  Waterloo  Min.  Co., 
where  it  was  held  that  under  the  mining  laws,  as  in  the  case  of  the 
statutes  and  constitutional  provisions  governing  the  jurisdiction  of 
the  federal  courts,  it  will  conclusively  be  presumed  that  all  the  stock- 
holders of  a  corporation  are  citizens  of  the  state  chartering  the  cor-. 
poration. 23 

Strictly  foreign  corporations  are  aliens,  of  course,  and  subject  to 
the  rules  affecting  aliens,  except  so  far  as  their  inability  to  be  natural- 
ized necessarily  makes  a  difference. 

Corporations  and  Placer  Locations. 

With  reference  to  placer  mining  locations  a  special  corporation 
question  arises.  Doubt  exists  there  because  the  placer  mining  stat- 
utes allow  one  person  to  embrace  only  20  acres  in  one  location,  while 
an  association  of  persons  not  less  than  eight  in  number  may  include 
160  acres  in  one  location.  The  query  has  arisen  whether  under  the 
placer  laws  a  corporation  is  merely  "one  person,"  entitled  to  locate, 
only  20  acres,  or  whether,  if  it  has  eight  or  more  incorporators,  it 
is  "an  association  of  persons"  entitled  to  locate  160  acres  of  placer 
ground.  The  query  is  based  on  the  language  of  the  United  States 
Supreme  Court  in  McKinley  v.  Wheeler,  where  the  court  held  that 
a  private  corporation  formed  under  the  laws  of  a  state  could  lo- 
cate a  mining  claim,  but  added :  "There  may  be  some  question  raised 
as  to  the  extent  of  a  claim  which  a  corporation  may  be  permitted  to 
locate  as  an  original  discoverer.  It  may  perhaps  be  treated  as  one 
person,  and  entitled  to  locate  only  to  the  extent  permitted  to  a 


21  North  Noonday  Min.  Co.  v.  Orient  Min.  Co.  (C.  C.)  1  Fed.  522,  6  Sawy. 
299,  316.    Where  the  complaint  in  an  adverse  suit  alleges  and  the  answer  ad- 
mits that  plaintiff  is  a  domestic  corporation,  the  citizenship  of  plaintiff's  stock- 
holders need  not  be  proved.     Jackson  v.  White  Cloud  Gold  Min.  &  Mill.  Co., 
36  Colo.  122,  85  Pac.  639 ;   Doe  v.  Waterloo  Min.  Co.,  70  Fed.  455,  17  C.  C.  A. 
190. 

22  130  U.  S.  630,  9  Sup.  Ct.  638,  32  L,  Ed.  1048. 

23  DOE  v.  WATERLOO  MIN.  CO.,  70  Fed.  455,  17  C.  C.  A.  190.     To  the 
same  effect  is  Jackson  v.  White  Cloud  Gold  Min.  &  Mill.  Co.,  36  Colo.  122,  85 
Pac.  639.     Compare  opinion,  28  Land  Dec.  Dep.  Int.  178.     See  Princeton  Min. 
Co.  v.  First  Nat.  Bank  of  Butte,  7  Mont.  530,  19  Pac.  210. 


§  51)  AGENTS.  173 

single  individual.    That  question,  however,  is  not  before  us  and  does 
not  call  for  an  expression  of  opinion."  2* 

Considering  that  it  requires  at  least  eight  bona  fide  locators  to 
make  a  valid  placer  location  of  160  acres,  locators  who  lend  their 
names  under  an  agreement  to  convey  without  consideration  being 
regarded  as  engaging  in  such  a  fraud  against  the  government  that 
the  location  is  void, 25  and  considering  that  a  corporation  is  really  in 
the  eyes  of  the  law  for  most  purposes  one  person,  it  certainly  seems 
to  be  clear  that  a  corporation  is  only  one  person,  entitled  to  include 
only  20  acres  in  one  placer  location,  rather  than  an  association  of 
persons. 2e  The  placer  law  must  have  meant  by  an  "association  of  per- 
sons" a  number  of  individual  locators,  whether  natural  or  corporate, 
or  both,  joining  together  to  make  a  common  location.  At  any  rate, 
until  the  United  States  Supreme  Court  shall  determine  that  a  cor- 
poration is  an  association  of  persons  within  the  meaning  of  the  placer 
act,  it  would  be  very  risky  for  any  intending  locators  to  act  as  if 
it  were  such. 2T 

MINORS. 

50.  Minors  may  locate  mining  claims. 

Minors  may  locate  mining  claims,  as  well  as  adults;  the  statute 
saying  nothing  as  to  age. 28  They  may,  of  course,  take  mining  claims 
by  descent 

AGENTS. 

51.  Mining  locations  may  be  made  for  principals  "by  agents. 

One  may  locate  a  mining  claim  by  his  agent.29  The  matter  is 
governed  by  general  agency  principles,  and,  as  the  authority  need 

2*  McKINLEY  v.  WHEELER,  130  U.  S.  630,  636,  9  Sup.  Ct  638,  32  L.  Ed. 
1048. 

26  Mitchell  v.  Cline,  84  Cal.  409,  24  Pac.  164;  Gird  v.  California  Oil  Co.  (C. 
C.)  60  Fed.  531.  See  Durant  v.  Corbin  (C.  C.)  94  Fed.  382. 

26  But  see  1  Lindley  on  Mines  (2d  Ed.)  §  449.     Compare  United  States  v. 
Trinidad  Coal  &  Coking  Co.,  137  U.  S.  160,  11  Sup.  Ct.  57,  34  L.  Ed.  640. 

27  See  GIRD  v.  CALIFORNIA  OIL  CO.  (C.  C.)  60  Fed.  531,  545,  where  the 
court  found  that  an  attempted  placer  location  of  a  little  over  48  acres  made 
by  three  natural  persons  was  in  fact  made  by  them  for  a  private  corporation, 
and  therefore  must  be  limited  to  20  acres  of  land. 

28  THOMPSON  v.  SPRAY,  72  Cal.  531,  14  Pac.  182.    This  does  not  apply 
to  coal  lands.    Compare  Davis  v.  Dennis,  43  Wash.  54,  85  Pac.  1079. 

29  DUNLAP  v.  PATTISON,  4  Idaho,  473,  42  Pac.  504,  95  Am.  St.  Rep.  140; 
Schultz  v.  Keeler,  2  Idaho,  333,  13  Pac.  481 ;  Whiting  v.  Straup  (Wyo.)  95  Pac. 


174  WHO   MAT   LOCATE    MINING   CLAIMS.  (Ch.  11 

not  be  in  writing,30  an  oral  authorization  or  ratification  is  enough. 
Moreover,  as  a  locator  is  presumed  to  assent  to  a  location  when  his 
assent  to  a  deed  of  realty  would  be  presumed,31  ratification  may  often 
be  proved  by  the  absence  of  dissent  after  notice. 32  While  the  legal 
title  inures  to  the  principal  by  the  location,  the  authority  to  locate  may 
also  be  accompanied  by  the  authority  to  abandon,  and,  if  it  is,  then 
the  principal  will  be  bound  by  the  abandonment.  33  An  agent  who  lo- 
cates a  mining  claim  for  and  in  the  name  of  his  principal,  without  any 
contract  to  acquire  an  interest  therein,  does  not  acquire  any  interest  in 
the  claim. 34 

In  making  the  location,  the  correct  form  is  for  the  agent  to  act 
in  the  principal's  name,  signing  all  notices  "A.,  by  B.,  Agent."  Yet, 
if  he  simply  signs  the  principal's  name,  that  should  be  enough.  Since 
the  authority  to  act  may  be  oral,  the  proof  that  the  name  was  signed 
by  such  authority  may  well  be  oral.  A  careful  miner,  however,  will 
take  no  chances. 

If  an  agent  locates  for  himself  claims  which  he  was  employed  to  lo- 
cate for  his  principal,  he  will  be  held  a  trustee  for  the  latter.  85  '  On  re- 
locations by  agents,  see  chapter  XVII,  infra. 

849;  Moore  v.  Steelsmith,  1  Alaska,  121;  McCulloch  v.  Murphy  (C.  C.)  125 
Fed.  147 ;  Murley  v.  Ennis,  2  Colo.  300 ;  Rush  v.  French,  1  Ariz.  99,  25  Pac. 
816;  MOORE  v.  HAMERSTAG,  109  Cal.  122,  41  Pac.  805.  See  Book  v.  Jus- 
tice Min.  Co.  (C.  C.)  58  Fed.  106. 

so  Murley  v.  Ennis,  2  Oolo.  300;  MOORE  v.  HAMERSTAG,  109  Cal.  122, 
41  Pac.  805. 

si  Gore  v.  McBrayer,  18  Cal.  582,  588;  Kramer  v.  Settle,  1  Idaho,  485;  Van 
Valkenburg  v.  Huff,  1  Nev.  142,  149.  But  see  Thompson  v.  Spray,  72  Cal.  531, 
14  Pac.  182. 

32  That  ratification  will  defeat  a  location  subsequent  to  that  ratified,  though 
prior  to  ratification,  see  RUSH  v.  FRENCH,  1  Ariz.  99,  25  Pac.  816.    Bring- 
ing a  suit  to  quiet  title  is  sufficient  ratification.    Thompson  T.  Spray,  72  Cal. 
528,  14  Pac.  182. 

33  KINNEY  v.  FLEMING,  6  Ariz.  263,  56  Pac.  723.    See,  also,  Sharkey  v. 
Candiani,  48  Or.  112,  85  Pac.  219,  7  L.  R.  A.  (N.  S.)  791. 

s*  McMahon  v.  Meehan  &  Larson,  2  Alaska,  278. 

SB  Copper  River  Mining  Co.  v.  McClellan,  2  Alaska,  134. 


§  52)  LOCATION   OF  LODE   CLAIMS.  175 

CHAPTER  XII. 
THE  LOCATION  OF  LODE  CLAIMS. 

52.  Definition  of  Location. 

53.  The  Discovery  or  Prospector's  Notice. 

54.  The  Discovery  Shaft  or  its  Equivalent 

55.  Marking  the  Location  upon  the  Ground. 
55a.        Excessive  Locations. 

55b.        Changing  Boundaries. 

56.  Posting  of  Notices  of  Location. 

57.  Recording. 

57a.        Amendments  of  Record. 

57b.        Adding  and  Dropping  Names  of  Locators. 

DEFINITION  OF  LOCATION. 

52.  By  location  in  meant  both.  (1)  the  act  or  acts  required  to  appro- 
priate a  mining  claim,  and  (2)  the  mining  claim  itself.  In 
this  chapter  meaning  (1)  is  intended. 

Location  is  sometimes  nsed  to  include  discovery,  but  here  the  -word  is 
used  to  cover  all  acts  of  location  following  discovery.  These 
acts  of  location  include:  (a)  The  discovery  notice;  (b)  the 
discovery  shaft,  or  its  equivalent;  (c)  the  marking  of  the  lo- 
cation upon  the  ground;  (d)  the  posting  of  notices  of  location; 
and  (e)  record. 

"Location  is  the  act  or  series  of  acts  by  which  the  right  of  exclusive 
possession  of  mineral  veins  and  the  surface  of  mineral  land  is  vested 
in  the  locator."  *  In  its  more  restricted  sense  the  word  "location"  ex- 
cludes discovery,2  and  it  is  used  in  that  restricted  sense  here.  It  may, 
perhaps,  exclude  record,  which  in  one  sense  may  only  proclaim  the  fact 
of  location ; 3  but  it  is  used  here  to  include  record.  "The  location  of  a 
mining  claim  is  the  act  of  appropriating  a  parcel  of  public  mineral 
land  in  accordance  with  the  provisions  of  the  mining  laws.  The  term 
is  also  applied  to  the  parcel  of  land  so  appropriated."  4 

Land  to  be  embraced  in  one  location  must  be  parcel  of  the  land 
where  discovery  is  made,  and  must  be  embraced  within  one  set  of 

1  Creede  &  C.  C.  Min.  &  Mill.  Co.  v.  Uinta  Tunnel,  Min.  &  Transp.  Co.,  196 
U.  S.  337,  346,  25  Sup.  Ct.  266,  49  L.  Ed.  501. 

2  Uinta  Tunnel,  Min.  &  Transp.  Co.  v.  Ajax  Gold  Min.  Co.,  141  Fed.  563, 
73  C    C   A    35 

s  See  Morrison's  Mining  Rights  (13th  Ed.)  pp.  25,  26. 

*  Tomera  Placer  Claim,  33  Land  Dec.  Dep.  Int.  560.  For  the  property 
nature  of  a  location.  se«  chapt»*  XX,  §  108. 


176  LOCATION   OF  LODE   CLAIMS.  (Ch.12 

boundary  lines.8  The  acts  of  location  normally  follow  discovery 
and  in  general  consist  of  (1)  the  posting  of  a  discovery  notice;  (2) 
the  sinking  of  a  discovery  shaft  or  its  equivalent;  (3)  the  marking  of 
boundaries;  (4)  the  posting  of  a  location  notice;  (5)  the  record- 
ing of  the  proper  papers.  If  only  the  acts  of  location  are  complet- 
ed before  the  rights  of  third  persons  intervene,  the  order  in  which 
the  acts  are  performed  is  immaterial.6  The  validity  of  the  location 
is  to  be  tested,  of  course,  by  the  law  in  force  at  the  time  the  location 
is  made.7 


THE  DISCOVERY  OB  PROSPECTOR'S  NOTICE. 

53.  Custom  and  prudence  everywhere,  and  statutes ,  in  some  states, 
call  for  the  posting  of  a  notice  of  discovery,  giving  the  date  of 
discovery  and  containing  a  statement  that  the  statutory  time 
to  complete  location  is  claimed.  This  notice  should  be  posted 
or  written  on  a  stake,  called  the  "discovery  stake,"  or  on  the 
discovery  monument  prescribed  by  statute,  and  placed  at  the 
point  of  discovery.  In  Idaho  the  distance  claimed  along  the 
vein  each  way  from  the  discovery  monument  must  be  stated  in 
the  notice. 

The  Discovery  Notice. 

It  has  been  the  universal  custom  in  the  mining  region  for  pros- 
pectors to  put  up  a  temporary  notice  at  the  point  of  discovery,  so 
as  to  apprise  all  comers  that  a  discovery  has  been  made  on  which  a 
location  is  to  be  perfected.  In  Idaho  such  a  temporary  notice  is  re- 
quired by  statute.  In  that  state  the  discoverer,  at  the  time  of  discov- 
ery, must  erect  a  discovery  monument  and  give  notice  of  discovery, 
by  placing  on  the  monument. his  name,  the  name  of  the  claim,  the 
date  of  discovery,  and  the  distance  claimed  along  the  vein  each  way 
from  the  monument.8  In  New  Mexico  a  discovery  notice  is  unknown 
to  the  local  law ;  but  it  is  held  that  the  discovery  and  the  posting  of  the 
regular  notice  of  location  must  be  practically  contemporaneous,8  and 
the  regular  notice  of  location,  therefore,  fully  answers  the  purpose  of  a 
discovery  notice.  The  same  is  probably  true  under  the  Montana 
statute  of  1907,10  and  is  certainly  true  in  Utah,  where  the  statute  re- 

e  Id. 

«  PERIGO  v.  ERWIN  (C.  C.)  85  Fed.  904 ;  Thompson  v.  Spray,  72  Gal.  528, 
14  Pac.  182 ;  Strepey  v.  Stark,  7  Colo.  614,  5  Pac.  Ill ;  Heman  v.  Griffith,  1 
Alaska,  264;  Charlton  v.  Kelly,  2  Alaska,  532. 

T  WILSON  v.  FREEMAN,  29  Mont  470,  75  Pac.  84,  68  L.  R.  A.  833. 

*  2  Ann.  Codes  Idaho  (Civ.  Code)  1901,  §  2557. 

•  Deeney  v.  Mineral  Creek  Milling  Co.,  11  N.  M.  279,  67  Pac.  724. 
fro  Laws  Mont  1907,  p.  18. 


§  53)  DISCOVERY   OB  PROSPECTOR'S  NOTICE.  177 

quires  the  location  notice  to  be  posted  at  the  time  of  making  discov- 
ery. 

Reason  for  Discovery  Notice. 

The  purpose  of  the  discovery  notice  is  to  show  that  there  has 
been  no  abandonment  of  location  rights,  and  it  would  seem  that 
a  discovery  notice,  or  something  equivalent,  is  absolutely  essential 
where  one  is  seeking  to  locate  a  vein  which  outcrops  so  fully  that  all 
who  go  by  may  see  it  with  the  naked  eye.  A  written  notice  would 
seem  not  to  be  essential,  in  the  absence  of  a  statute  like  that  in  Idaho, 
provided  work  is  already  begun  and  any  prospector  could  see,  from 
tools  on  the  ground  and  the  state  of  the  work,  that  the  acts  of  loca- 
tion were  in  process  of  completion;  but  some  kind  of  notice  cer- 
tainly would  seem  to  be  vital.11  The  whole  spirit  of  American  min- 
ing law,  as  evidenced  in  the  practically  uniform  custom  to  post  a  dis- 
covery notice,  calls  for  a  notice  of  discovery,  and  preferably  a  written 
notice.  But  a  notice  which  is  not  followed  by  a  marking  of  the  lo- 
cation on  the  ground,  and  which  does  not  contain  a  description  identi- 
fying the  claim  by  reference  to  some  natural  object  or  permanent 
monument,  does  not  create  a  location.12 

Contents  of  Discovery  Notice. 

The  particularity  required  by  the  Idaho  statute  need  not,  of  course, 
be  observed  elsewhere,  yet  fairness  requires  everything  called  for 
by  that  statute.  Taking  the  names  contained  in  Erhardt  v.  Boaro,13 
a  proper  discovery  notice  would  be : 

"Hawk  Lode. 

"The  undersigned  have  discovered  this  lode,  and  claim  750  feet  on 
it  each  way  from  discovery.  They  also  claim  the  statutory  time  to 
complete  location. 

"Date  of  discovery,  June  17, 1907. 

"Joel  B.  Erhardt. 
"Thomas  Carroll." 

Except  in  Idaho,  the  number  of  feet  each  way  from  discovery  need 
not  be  stated,  and  almost  any  kind  of  informal  notice  will  do.  The 
Idaho  discovery  notice  is  required  to  be  as  full  as  the  posted  loca- 

11  See  1  Snyder  on  Mines,  §  375.     On  the  value  of  discovery  notice,  see 
Omar  v.  Soper,  11  Colo.  380,  18  Pac.  443,  7  Am.  St.  Rep.  246.    In  Washington 
ft  gives  a  reasonable  time  in  which  to  mark  boundaries.    Union  Min.  &  Mill. 
Co.  v.  Leitch,  24  Wash.  585,  64  Pac.  829,  85  Am.  St.  Rep.  96L 

12  Malececk  v.  Tinsley,  73  Ark.  610,  85  S.  W.  81. 
Us  113  U.  S.  527,  5  Sup.  Ct.  560,  28  L.  Ed.  1113. 

COST.MIN.L.— 12 


178  LOCATION   OF   LODE   CLAIMS.  (Chu   12 

tion  notice   is   in    Colorado.1*     For  Colorado  the    following   would 
answer  for  discovery  : 

"Hawk  Lode. 

"The  undersigned  claim  the  statutory  time  to  complete  location  of 
this  lode,  discovered  June  17,  1907. 

"Joel  B.  Erhardt. 
"Thomas  Carroll." 

DISCOVERT  SHAFT  OR  ITS  EQUIVALENT. 

54.  A  discovery  shaft,  sunk  on  unappropriated  public  land  embraced 
within  the  claim  sought  to  be  located,  or  the  statutory  equiv- 
alent of  a  discovery  shaft,  is  by  local  statutes  in  most  juris- 
dictions made  essential  to  a  lode  location.  The  discovery 
shaft  must  comply  with  the  local  statutory  requirements  as 
to  width,  depth,  disclosure  of  vein,  etc.  The  equivalents  of 
a  discovery  shaft  are  an  adit,  a  cross  cut,  an  open  cut,  and  a 
tunnel,  disclosing  the  length  of  vein,  or  cutting  the  vein  at 
the  depth,  and  excavating  the  number  of  cubic  feet,  prescribed 
by  the  local  statute. 

Alaska,  California,  and  Utah  leave  the  question  of  requiring  a 
discovery  shaft  to  district  rules.  In  the  other  mining  law  states  and 
territories  the  shaft,  in  addition  to  disclosing  a  well-defined  vein, 
must  be  at  least  10  feet  deep ;  the  depth  being  measured  from  the  low- 
est part  of  the  surface  rim.15  No  width  is  usually  prescribed;  but, 
of  course,  such  size  of  opening  must  be  made  as  ordinary  miners 
could  reasonably  regard  as  a  shaft.  A  drill  hote  would  not  suffice.16 
In  Nevada  the  shaft  must  be  4  feet  by  6  feet  and  sunk  to  at  least  10 

i*  See  Mills'  Ann.  St.  Colo.  §  3152. 

IB  "in  the  instance  of  a  shaft  sunk,  not  vertical,  but  following  a  vein  with 
a  heavy  pitch,  it  is  obvious  that  a  slight  difference  would  exist  between  a 
vertical  measurement  and  a  measurement  following  the  pitch  of  the  shaft; 
the  latter  measurement  being  the  shorter  distance  and  favoring  the  pros- 
pector. And  although  usually  the  measurement  is  taken  vertically,  yet  in 
such  case  we  do  not  see  but  that  the  measure  following  the  dip  would 
strictly  conform  to  the  law,  unless,  as  in  Montana,  the  statute  mentions  verti- 
cal depth  specifically.  *  *  *  After  a  shaft  has  been  sunk  ten  feet,  the 
ground  at  the  collar  may  cave,  or  the  shaft  may  become  filled  with  debris, 
or  the  making  of  a  platform  or  raised  collar  may  make  it  difficult  to  ascer- 
tain the  exact  line  of  the  original  rim  of  the  shaft,  or  to  ascertain  its  original 
bottom.  In  view  of  these  facts,  and  of  the  essential  importance  of  the  shaft 
being  full  teh  feet  deep,  it  is  always  advisable  to  sink  it  two  or  three  feet 
deeper,  and  remove  all  ground  for  cavil  or  contention."  Morrison,  Mining 
Rights  (13th  Ed.)  p.  40. 

i«  Morrison,  Mining  Rights,  p.  33. 


§  54)  DISCOVERY   SHAFT   OR   ITS   EQUIVALENT.  179 

feet  in  depth;17  while  in  Montana  the  shaft  must  be  sunk  vertically 
10  feet,  or  as  much  more  as  is  necessary  to  disclose  the  vein  or  de- 
posit located,  and  the  cubical  contents  of  such  shaft  must  be  not  less 
than  75  cubic  feet,  if  the  vein  is  found  short  of  10  feet,  and  at  least 
150  cubic  feet  otherwise,  and  any  deficiency  of  the  150  cubic  feet 
above  75  may  be  made  up  by  other  excavations.18  The  Montana  re- 
quirement is  likely  to  be  adopted  in  other  states. 

Reason  for  Discovery  Shaft  Requirement. 

The  chief  purpose  of  requiring  a  discovery  shaft  is  to  demonstrate 
the  presence  of  a  vein;  but  it  also  serves  another  purpose,  namely, 
"to  compel  the  discoverer  to  manifest  his  intention  to  claim  the 
ground  in  good  faith  under  the  mining  laws."  19  It  is  this  latter 
purpose  that  causes  perplexity  when  we  ask  whether,  by  laying  out 
two  locations  with  a  common  end  line,  which  bisects  one  discovery 
shaft  in  such  a  way  as  to  disclose  the  vein  as  existing  in  each  location, 
the  locator  has  a  discovery  shaft  for  both. 

Two  Locations  Claimed  through  One  Discovery  Shaft. 

FIGURE.  NO.  4% 


CLAIM    A 
DISCOVER  r^VELfp                       ^  , 

CLAIM   B 

^^ 

The  chief  purpose  of  a  discovery  shaft  has  been  fulfilled  for  both 
locations  in  the  case  illustrated  by  Figure  No.  4;  but  the  locator  is 
endeavoring  to  get  by  one  exertion  twice  what  the  law  intended  him 
to  have  thereby.  The  fact  that  a  discovery  shaft  sunk  by  a  junior 
locator  is  good,  even  though  it  be  cut  in  two  by  the  line  of  the  senior 
location,20  may  be  disregarded,  because  in  that  case  only  one  location 
is  predicated  upon  one  discovery  and  one  discovery  shaft.  To  claim 
two  locations  through  one  discovery  shaft  of  only  the  depth  required 
for  one  claim  is  clearly  to  act  in  bad  faith,  and  in  such  bad  faith  that 

IT  Laws  Nev.  1907,  p.  419,  c.  191,  §  2. 

is  Laws  Mont.  1907,  p.  20. 

i»  1  Lindley  on  Mines  (2d  Ed.)  §  344.  In  Colorado,  prior  to  the  act  of 
1866,  development  work  was  required  by  miners'  rules  and  customs.  Con- 
solidated Rep.  M.  M.  Co.  v.  Lebanon  M.  Co.,  9  Colo.  343,  12  Pac.  212. 

20  See  UPTON  v.  LARKIN,  7  Mont.  449,  17  Pac.  728;  Id.,  144  U.  S.  19, 
12  Sup.  Ct.  614,  36  L.  Ed.  330 ;  Phillips  v.  Brill  (Wyo.)  95  Pac.  856  (placer) ; 
Healey  v.  Rupp,  28  Colo.  102,  63  Pac.  319. 


180  LOCATION   OF  LODE   CLAIMS.  (Ch.  12 

both  locations  should  be  held  void.21     It  is  a  case  of  excessive  lo- 
cation, where  the  whole  is  bad  because  of  fraud.22 

But  if  the  one  shaft  is  sunk  twice  the  required  depth  for  a  dis- 
covery shaft,  and  the  vein  is  disclosed  in  both  claims,  the  requisite 
good  faith  to  sustain  both  locations  might  be  held  to  exist,  though  a 
prudent  miner  would  not  take  the  risk.  The  chief  objection  to  let- 
ting one  shaft  of  twice  the  ordinary  discovery  shaft  depth  serve  to 
perfect  two  locations  seems  to  be  the  uncertainty  as  to  the  real  situa- 
tion which  it  would  leave  in  the  mind  of  a  subsequent  prospector,  but 
that  objection  is  not  overpowering.  The  question  is  often  regarded 
as  one  .of  insufficient  discovery  for  two  claims;  but,  if  the  vein  is 
disclosed  in  both  claims,  it  is  clearly  only  one  of  a  sufficient  or  in- 
sufficient discovery  shaft.23 

Relation   of  Discovery  Shaft   to    the   Location. 

The  discovery  shaft  must,  of  course,  be  upon  land  not  already  tak- 
en properly  for  other  purposes  by  other  parties.  A  known  lode  within 
a  townsite  patent 24  may  be,  and  a  known  lode  within  a  placer  certainly 
is,  exceptional ;  but  apart  from  them  the  discovery  shaft  must  be  out- 
side the  boundaries  of  any  previously  located  mining  claim  or  patent- 
ed mine,  or  else  the  location  is  void.25  Moreover,  if  a  senior  locator 
permits  a  junior  locator  to  patent  the  ground  covering  the  senior's 
discovery  shaft,  the  senior  location  is  thereby  rendered  invalid;  for 
a  claim  must  include  the  discovery  shaft,  and  without  it  is  not  a 
valid  location.26  In  most  states,  however,  where  the  lode  has  been 

21  McKINSTRY  v.  CLARK,  4  Mont.  370,  1  Pac.  759;   Poplar  Creek  Consol. 
Quartz  Mine,   16  Land  Dec.  Dep.  Int.  1.     See  REYNOLDS  v.  PASCOE,  24 
Utah,  219,  221,  66  Pac.  1064,  1065.     Compare  Reiner  v.  Schroeder,  146  Cal. 
411,  80  Pac.  517. 

22  Compare  the  case  of  an  attempt  to  claim  two  mill  sites  by  one  mill  or 
reduction  works.  Hecla  Consol.  Min.  Co.,   14  Land  Dec.   Dep.  Int.   11.     But 
see  1  Snyder  on  Mines,  §  351. 

23  See  Phillips  v.  Brill  (Wyo.)  95  Pac.  856. 

24  Moyle  v.  Bullene,  7  Colo.  App.  308,  44  Pac.  69. 

25  GWILLIM  v.  DONNELLAN,   115  U.   S.  45,  5  Sup.  Ct.  1110,  29  L.  Ed. 
348;    Peoria  &  Colorado  Mill.  &  Min.  Co.  v.  Turner,  20  Colo.  App.  474,  79 
Pac.   915 ;    Armstrong  v.   Lower,   6   Colo.  393 ;    Id.  581 ;    Tuoluinne  Consol. 
Mining  Co.  v.  Maier,  134  Cal.  583,  66  Pac.  863 ;    REYNOLDS  v.  PASCOE,  24 
Utah,  219,  66  Pac.  3064;    Watson  v.  Mayberry,  15  Utah,  265,  49  Pac.  479: 
Moyle  v.  Bullene,  7  Colo.  App.  308,  44  Pac.  69 ;   Little  Pittsburgh  Consolidated 
Min.  Co.  v.  Amie  Min.  Co.  (C.  C.)  17  Fed.  57,  5  McCrary,  298;    Upton  v. 
Larkin,  5  Mont.  600,  6  Pac.  66.     See  McGinnis  v.  Egbert,  8  Colo.  41,  5  Pac. 
652. 

28  McGinnis  v.  Egbert,  8  Colo.  54,  5  Pac.  652;  Michael  v.  Mills,  22  Colo. 
439,  45  Pac.  429;  McMillen  v.  Ferrum  Min.  Co.,  32  Colo.  38,  74  Pac.  461, 
105  Am.  St.  Rep.  64;  Girard  v.  Carson,  22  Colo.  345,  44  Pac.  508;  Miller 
v.  Girard,  3  Colo.  App.  278,  33  Pac.  69.  But  where  the  junior  claim  goes  to 


§  54)  DISCOVERY   SHAFT   OR  ITS   EQUIVALENT.  181 

validly  located,  the  location  would  be  good  despite  the  subsequent 
loss  of  discovery  shaft,  if  only  a  new  discovery  is  made  within  the 
remaining  portion  of  the  located  ground  prior  to  any  intervening 
rights  of  third  persons.27  That  is  because  the  locator  may  make  any 
shaft  his  discovery  shaft.28  It  is  a  question,  however,  whether  in 
Colorado  anything  would  answer  in  such  case  except  a  relocation  based 
upon  the  new  discovery  which  would  involve  an  abandonment  of  the 
original  location.29  The  reason  for  the  doubt  on  that  question  will 
be  found  in  the  Colorado  cases  and  statutes  compelling  a  discovery 
in  the  discovery  shaft. 

The  discovery  shaft  may  be  anywhere  upon  the  claim,  except,  it 
seems  in  Wyoming,  where  by  statute  it  must  be  half  way  between 
the  side  lines  of  the  claim. 

Essentials  of  the  Discovery  Shaft. 

The  depth  of  the  discovery  shaft  need  not  be  the  statutory  number 
of  feet  before  the  other  acts  of  location  are  completed,  if  only  the 
required  depth  is  reached  before  adverse  rights  intervene.30  The 
depth,  of  course,  is  estimated  from  the  lowest  rim  of  the  surface, 

patent  under  an  agreement  to  deed  to  the  owners  of  the  senior  the  discovery 
shaft  as  soon  as  patent  is  received,  and  the  agreement  is  actually  carried 
out,  the  land  department  has  held  the  senior  location  not  to  be  invalidated. 
Duxie  Lode,  27  Land  Dec.  Dep.  Int.  88.  And  see  LITTLE  PITTSBURGH 
CONSOLIDATED  MIN.  CO.  v.  AMIE  MIN.  CO.  (C.  C.)  17  Fed.  57,  which 
held  that  a  locator  may  sell  the  ground  containing  the  discovery  shaft  with- 
out invalidating  the  rest  of  the  location.  The  last  case  was  decided  prior  to 
GWILLIM  v.  DONNELLAN,  115  U.  S.  45,  5  Sup.  Ct.  1110,  29  L.  Ed.  348, 
with  which  it  would  seem  to  be  inconsistent  in  principle.  See,  also,  Tono- 
pah  &  S.  L.  Min.  Co.  v.  Tonopah  Min.  Co.  of  Nevada  (C.  C.)  125  Fed.  408. 
A  late  case  holds  that  a  locator  may  patent  the  part  of  his  claim  containing 
his  discovery  shaft  without  losing  his  right  to  retain  and  by  annual  labor 
hold  the  rest.  Miller  v.  Hamley,  31  Colo.  495,  74  Pac.  980. 

27  See  SILVER  CITY  GOLD  &  SILVER  MIN.  CO.  v.  LOWRY,  19  Utah, 
334,  57  Pac.  11 ;  TONOPAH  &  S.  L.  MIN.  CO.  v.  TONOPAH  MIN.  CO.  OF 
NEVADA  (C.  C.)  125  Fed.  408.  , 

2&O'DONNELL  v.  GLENN,  8  Mont.  248.  19  Pac.  302.  But  query  under 
the  Montana  statute  of  1907  (Laws  Mont.  1907,  pp.  21,  22).  A  loss  of  dis- 
covery shaft  woufd  seem,  under  that  statute,  to  call  for  a  complete  re- 
location. 

29  BEALS  v.  CONE,  27  Colo.  473,  62  Pac.  948,  83  Am.  St.  Rep.  92.  But 
see  Terrible  Min.  Co.  v.  Argentine  Min.  Co.  (C.  C.)  89  Fed.  583  (affirmed 
Argentine  Min.  Co.  v.  Terrible  .Min.  Co.,  122  U.  S.  478,  7  Sup.  Ct.  1356,  30 
L.  Ed.  1140) ;  Treasury  Tunnel  Mining  &  Reduction  Co.  v.  Boss,  32  Colo.  27, 
74  Pac.  888,  105  Am.  St.  Rep.  60;  McMillen  v.  Ferrum  Min.  Co.,  32  Colo. 
38,  74  Pac.  461,  105  Am.  St.  Rep.  64. 

so  McGINNIS  v.  EGBERT,  8  Colo.  41,  5  Pac.  652.  So  a  shaft  need  only 
disclose  the  lode  required  by  statute  before  other  parties  acquire  interven- 


182  LOCATION   OP   LODE   CLAIMS.  (Ch.  12 

even  though  that  surface  be  slide  rock.81  While  the  discovery  shaft 
must  disclose  a  vein  or  lode,  that  vein  need  not  contain  pay  ore,82 
or  anything  except  sufficient  vein  matter  on  which  to  base  a  discov- 
ery.83 Though  at  one  time  in  Montana  the  state  statute  required 
at  least  one  wall  of  the  vein  to  be  disclosed  by  the  discovery  shaft,84 
the  provision  was  of  doubtful  validity  and  has  been  repealed.  There 
may  be  veins  or  lodes  sufficient  when  discovered  to  support  a  loca- 
tion, yet  showing  no  well-defined  walls  after  months  or  years  of 
development,  and  in  the  absence  of  a  statute  it  is  not  essential  that 
the  discovery  shaft  disclose  a  vein  with  a  wall.35  In  the  Colorado 
statute  requiring  the  shaft  to  show  a  well-defined  crevice,  the  term 
"crevice"  means  a  mineral-bearing  vein.36  The  discovery  shaft  need 
not  be  sunk  at  the  precise  point  where  the  prospector  first  discovers 
the  lode.37 

Equivalents  of  Discovery  Shaft. 

Nearly  all  the  mining  codes  permit  certain  other  development  work 
to  be  substituted  for  a  discovery  shaft.  The  Colorado  statute  is  typi- 
cal, and  provides  that  "any  open  cut,  cross  cut  or  tunnel  which  shall 
cut  a  lode  at  a  depth  of  ten  feet  below  the  surface  shall  hold  such  lode, 
the  same  as  if  a  discovery  shaft  were  sunk  thereon,  or  an  adit  of 
at  least  ten  feet  in  along  the  lode  from  the  point  where  the  lode  may 
be  in  any  manner  discovered,  shall  be  equivalent  to  a  discovery 
shaft."  38  We  have  already  defined  these  different  terms.39  Under 
the  wording  of  this  statute  the  Colorado  court  has  held  that  an  adit 
need  not  be  10  or  any  other  specified  number  of  feet  deep,  though 
it  must  be  10  feet  in  length  along  the  vein,40  and  that  an  adit  need 

ing  rights.  Strepey  v.  Stark,  7  Colo.  614,  5  Pac.  Ill;  Zollars  v.  Evans, 
(C.  C.)  5  Fed.  172,  2  McOrary,  39:  McGinnis  v.  Egbert,  8  Colo.  41,  5  Pac. 
652. 

si  Van  Zandt  v.  Argentine  Min.  Co.  (C.  C.)  8  Fed.  725,  2  McCrary,  159; 
Waterloo  Min.  Co.  v.  Doe  (C.  C.)  56  Fed.  685. 

32  Muldrick  v.  Brown,  37  Or.  185,  61  Pac.  428. 

33  COPPER  GLOBE  MIN.  CO.  v.  ALLMAN,  23  Utah,  410,  64  Pac.  1020; 
Terrible  Min.  Co.  v.  Argentine  Min.  Co.  (C.  C.)  89  Fed.  583. 

3*Foote  v.  National  Min.  Co.,  2  Mont.  402;  O'Donnell  v.  Glenn,  8  Mont 
248,  19  Pac.  302. 

ss  Fleming  v.  Daly,  12  Colo.  App.  439,  56  Pac.  946. 

36BEALS  v.  CONE,  27  Colo.  473,  62  Pac.  948,  83  Am.  St.  Rep.  92. 

37  Harrington  v.  Chambers,  3  Utah,  94,  1-  Pac.  362,  375;  Terrible  Min. 
Co.  v.  Argentine  Min.  Co.  (C.  C.)  89  Fed.  583. 

«8  Mills'  Ann.  St.  Colo.  §  3154. 

8»  Chapter  VIII,  §  30  (a). 

*<>Gray  v.  Truby,  6  Colo.  278;  ELECTRO-MAGNETIC  M.  &  D.  CO.  V. 
VAN  AUKEN,  9  Colo.  204,  11  Pac.  80. 


§  54)  DISCOVERY    SHAFT   OR   ITS    EQUIVALENT.  183 

not  be  under  cover  for  the  10  feet  to  comply  with  the  statute.41  As 
Messrs.  Morrison  and  De  Soto  point  out,  "the  effect  of  the  latter  de- 
cision is  to  confuse  all  the  distinctions  between  an  adit  and  an  open 
cut,  so  that,  if  the  hole  or  stripping  discloses  10  feet  in  length  of  the 
vein,  it  may  be  styled  an  adit,  althouigh  in  fact  an  open  cut.  It  is 
not  safe  to  rely  on  this  construction,  and  no  prospector  should  con- 
sider his  discovery  complete  until  he  has  10  feet  in  depth  at  the  breast 
of  his  cut,  or  a  covered  adit  at  least  10  feet  in  along  the  vein."  42 

The  Montana  statute  wisely  avoids  the  words  "adit"  and  "open 
cut,"  and  makes  the  equivalent  of  a  discovery  shaft  any  cut  or  tunnel 
which  discloses  the  vein  lode  or  deposit  located  at  a  vertical  depth  of 
at  least  10  feet  below  the  natural  surface  of  the  ground  and  which 
constitutes  at  least  150  cubic  feet  of  excavation.43 

The  Time  to  Complete  Discovery  Work. 

The  time  for  sinking  a  discovery  shaft  is  controlled  by  statute, 
or  else  is  a  reasonable  time.44  In  the  absence  of  a  statute,  90  days 
has  been  held  an  unreasonable  time.45  In  Colorado,  Idaho,  Montana, 
North  Dakota,  Oregon,  South  Dakota,  and  Wyoming  60  days  is 
the  statutory  period.  In  Arizona,  Nevada,  New  Mexico,  and  Wash- 
ington it  is  90  days.  In  Alaska,  California,  and  Utah  discovery  shafts 

41  ELECTRO-MAGNETIC  M.  &  D.  CO.  v.  VAN  AUKEN,  9  Colo.  204,  11 
Pac.  80.     But  the  development  must  be  such  in  dimensions  and  character 
as  to  make  it  fairly  the  equivalent  of  a  discovery  shaft.     Id. 

42  Morrison's  Mining  Rights  (13th  Ed.)  43.     In  speaking  of  the  difference 
between  cuts  and  shafts,  Messrs.  Morrison  and  De  Soto  say:    "It  is  obvious 
that,  a  cut  being  equivalent  to  a  shaft  and  the  pitch  of  the  vein  varying 
to  any  degree  between  true  vertical  and  the  horizontal,  it  is  impossible  to 
say  at  which  angle  the  cut  would  be  so  flat  as  to  be  no  longer  in  strictness 
a  shaft.     But  a  pit  dug  on  a  blanket  vein  reaching  in  ten  feet  being  in  com- 
pliance with  the  law,  and  no  more  work  being  required  on  a  blanket  vein 
than  on  a  fissure,  the  pit  or  shaft  following  the  vein  by  measurement  along 
the  vein  would  be  a  compliance  with  the  law,  without  regard  to  its  relation 
to  the  vertical."    Morrison's  Mining  Rights  (13th  Ed.)  40.     But  this  is  not 
true  of  the  new  Montana  statute,  as  that  calls  for  vertical  measurement. 
Laws  Mont.  1907,  p.  20. 

43  Laws  Mont.  1907,  p.  20.    That  the  cut,  cross-cut,  or  tunnel  which  is  the 
equivalent  of  a  discovery  shaft  must  not  be  concealed  or  reached  by  some 
secret  means  of  ingress  beneath  the  surface,  but  must  be  run  from  some 
opening  on  the  claim  itself,  is  held  in  Butte  Consol.  Min.  Co.   v.  Barker, 
35  Mont.  327,  89  Pac.  302,  90  Pac.  177. 

44  Doe  v.  Waterloo  Min.  Co.  (C.  C.)  55  Fed.  12 ;   Murley  v.  Ennis,  2  Colo. 
300.    The  state  statute,  requiring  a  discovery  shaft  or  equivalent  within  90 
days,  is  not  in  conflict  with  the  federal  statute,  giving  a  longer  time  for  the 
performance  of  annual  labor.     Sisson  v.  Sommers,  24  Nev.  379,  55  Pac.  829, 
77  Am.  St.  Rep.  815. 

4  5  Patterson  v.  Hitchcock,  3  Colo.  533. 


184  LOCATION    OF   LODE   CLAIMS.  (Ch.  12 

are  not  required  unless  district  rules  so  provide,  and,  if  required, 
are  governed  by  those  rules.  In  Colorado  the  time  runs  from  the 
date  of  the  discovery  of  mineral  and  the  erection  of  the  discovery 
notice,  and  a  renewal  of  the  notice  of  discovery  will  not  extend  the 
time.46 

Effects  of  Failure  to  Do  Discovery  Work. 

Where  plaintiffs  are  kept  from  completing  a  discovery  shaft,  be- 
cause by  the  fraud  and  violence  of  the  defendants  they  have  been 
ousted,  and  by  threats  intimidated  from  returning,  the  defendants  can 
take  no  advantage  from  the  failure.47  Where,  for  other  reasons,  the 
discovery  work  has  not  been  done,  a  peaceable  relocation  will  be  up- 
held.48 


MARKING   THE   LOCATION   UPON   THE    GROUND, 

"The  location  must  be  distinctly  marked  on  the  ground  so  that  its 
boundaries  can  be  readily  traced."  Rev.  St.  U.  S.  §  2324:  (U.  S. 
Comp.  St.  1901,  p.  1426). 

55.  By  the  federal  statute  the  "location  must  be  distinctly  marked 
npon  the  ground  so  that  its  boundaries  can  be  readily  traced," 
and  by  the  state  statutes  and  district  rules  the  boundaries 
themselves  must  be  marked  in  designated  ways.  The  federal 
requirement  is  far  less  exacting  than  are  the  local  require- 
ments, but  all  must  be  complied  with. 

All  corners  and  angles  of  the  claim  should  be  marked  by  posts  of  the 
size  required  by  the  local  rules  and  statutes,  and  these  posts 
should  be  numbered  and  marked  with  the  name  of  the  claim, 
the  date  of  location,  and  a  reference  to  the  discovery  stake* 
Care  should  be  taken  to  tie  the  claim  to  natural  objects  ox* 
permanent  monuments. 

Such  marking  should  be  done  within  the  time  fixed  by  statute;  but 
•where  there  is  no  statute  the  jurisdictions  differ  on  the  ques- 
tion -whether  the  marking  must  follow  discovery  immediately 
or  may  take  place  within  a  reasonable  time. 

'*«  Ingemarson  v.  Coffey  (Colo.)  92  Pac.  908. 

47  MILLER  v.   TAYLOR,    6   Colo.   41.     But  nothing   short   of   prevention 
from   such  cause  will  serve  as  an  excuse  for  not  perfecting  the  location. 
Lockhart  v.  Wills,  9  N.  M.  344,  54  Pac.  336. 

48  Walsh  v.  Henry,  38  Colo.  393,  88  Pac.  449. 

"It  is  a  very  common  notion  among  prospectors  in  this  country  that  if 
they  sink  a  shaft,  which  they  call  a  'discovery  shaft,'  to  a  depth  of  more  than 
ten  feet,  and  put  up  their  stakes,  they  acquire  thereby  some  sort  of  an  in- 
terest in  the  public  domain,  although  within  the  limits  of  their  shaft  or  cut 
there  may  be  no  indications  whatsoever  of  a  vein  or  mineral  deposit  and 
work  has  ceased.  Whatever  may  be  the  comity  in  respect  of  this  matter 


§  55)  MARKING    THE   LOCATION   UPON    THE   GROUND.  185 

The  federal  statute  of  1872  requires  all  claims  to  be  marked  on 
the  ground,  so  that  their  boundaries  can  readily  be  traced.  That  stat- 
ute has  been  supplemented  in  most  mining  law  states  by  statutes 
requiring  a  specific  kind  of  marking;  but  in  Alaska,  California,  and 
Utah,  where  there  are  no  local  statutes  requiring  the  marking,  only  the 
federal  statute  and  district  rules  need  be  complied  with.  Though  all  the 
local  mining  codes  should  be  repealed,  the  requirement  of  marking  the 
location  would  still  exist  because  of  the  federal  statute.  The  require- 
ment is  mandatory.49  And  a  failure  to  mark  the  location  is  fatal.* 

In  the  marking  of  boundaries  the  first  requisite  is  to  designate 
the  corners  and  angles  of  the  claim  by  stakes  or  posts.  The  mining 
law  contemplates  that  a  mining  claim  shall  be  a  parallelogram,  not 
exceeding  1,500  feet  in  length  nor  600  feet  in  width ;  50  but  a  departure 
from  that  ideal  may  be  made  if  the  location  is  not  excessive.  The 
statute  specifically  says,  too,  that  "the  end  lines  of  each  claim  shall 
be  parallel  to  each  other;81  but  that  provision  is  merely  directory.52 
An  ideal  location  would  be  laid  out  lengthwise  along  the  strike  of  the 
vein,  with  the  end  lines  at  right  angles  to  that  strike,53  and  with 
only  four  corners,  viz.: 

FIGURE  Mo.  5. 


DISCOVERY-  VfelN 


among  miners  and  prospectors,  as  a  matter  of  law  such  a  location  is  ab- 
solutely worthless  for  any  purpose."  McLaughlin  v.  Thompson,  2  Colo.  App. 
135,  29  Pac.  816,  817.  See  Erhardt  v.  Boaro,  113  U.  S.  527,  535,  536,  5  Sup.  Ct 
560,  28  L.  Ed.  1113,  Bulette  v.  Dodge,  2  Alaska,  427. 

4»  Ware  v.  Smith  (Ark.)  108  S.  W.  831. 

*  In  Neuebaumer  v.  Woodman,  89  Cal.  310,  36  Pac.  900,  the  plaintiffs,  who 
had  been  in  the  possession  of  an  unmarked  claim  until  put  out  by  defendants, 
who  attempted  to  make  a  location,  but  did  not  mark  the  location,  were  al- 
lowed to  recover  in  ejectment.  As  the  plaintiffs  had  bought  and  were  in 
under  deeds  which  doubtless  described  the  ground  which  they  claimed,  they 
probably  came  under  the  rule  as  to  constructive  possession  announced  in 
Hess  v.  Winder,  30  Cal.  349. 

BO  See  DEL  MONTE  MINING  &  MILLING  CO.  v.  LAST  CHANCE  MIN- 
ING &  MILLING  CO.,  171  U.  S*  55,  84,  18  Sup.  Ct  895,  43  L.  Ed.  72. 

61  Rev.  St.  U.  S.  §  2320  (U.  S.  Comp.  St.  1901,  p.  1424). 

62  "There  is  liberty  of  surface  from  under  the  act  of  1872."     WALRATH 
v.  CHAMPION  MIN.  CO.,  171  U.  S.  312,  18  Sup.  Ct.  909,  43  L.  Ed.  170. 

63  DAGGETT  v.  YREKA  MIN.  &  MILL.  CO.,  149  Cal.  357,  86  Pac.  968. 


186  LOCATION    OF   LODE    CLAIMS.  (Ch.  12 

In  the  absence  of  state  legislation,  such  a  location  would  ordinarily 
be  marked  on  the  ground,  so  that  its  boundaries  could  readily  be  trac- 
ed, if  posts  or  other  monuments  were  erected  at  each  of  the  four 
corners  with  notices  on  them,  or  marks  cut  in  them,  sufficiently  definite 
to  enable  them  readily  to  be  found  from  the  discovery  or  location 
notice.54 

The  Purpose  of  Marking  the  Location. 

The  marking  is  to  give  full  notice  to  other  prospectors  of  the  extent 
of  the  claim,  and  such  marking  as  will  give  that  kind  of  notice  is  re- 
quired.65 As  has  well  been  said:  "The  law  is  equally  mandatory  in  re- 
quiring that  mining  claims  must  be  so  marked  upon  the  ground  that 
the  boundaries  thereof  can  be  readily  traced.  This  requirement  is  not 
fulfilled  by  simply  setting  a  post  at  or  near  the  place  of  discovery  and 
setting  stakes  at  each  of  the  corners  of  the  claim  and  at  the  center  of 
the  end  lines,  unless  the  topography  of  the  ground  is  such  that  a  per- 
son accustomed  to  tracing  the  lines  of  mining  claims  can,  after  reading 
the  description  of  the  claim  in  the  posted  notice  of  location,  by  a  rea- 
sonable and  bona  fide  effort  to  do  so,  find  all  of  the  stakes,  and  thereby 
trace  the  lines.  Where  the  country  is  broken,  and  the  view  from  one 
corner  to  another  is  obstructed  by  intervening  gulches  and  timber  and 
brush,  it  is  necessary  to  blaze  the  trees  along  the  lines,  or  cut  away 
the  brush,  or  set  more  stakes  at  such  distances  that  they  may  be  seen 
from  one  to  another,  or  dig  up  the  ground  in  a  way  to  indicate  the 
lines,  so  that  the  boundaries  may  be  readily  traced."  56 

In  Willeford  v.  Bell  the  Supreme  Court  of  California  approved  the 
following  instructions  as  to  marking  boundaries:  "The  jury  are  in- 
structed by  the  court  that  the  mining  claim  of  the  defendant,  in  order 
to  be  valid,  must  have  been  distinctly  marked  upon  the  ground,  so  that 

64  Stakes  and  stone  monuments  put  at  each  corner  of  the  claim  and  at 
the  center  of  each  of  the  end  lines  were  held  a  sufficient  marking  in  South- 
ern Cross  Gold  &  Silver  Min.  Co.  v.  Europa  Min.  Co.,  15  Nev.  383,  and  in 
Howeth  v.  Sullenger,  113  Gal.  547,  45  Pac.  841.  Compare  Marshall  v.  Har- 
ney  Peak  Mfg.  Co.,  1  S.  D.  350,  47  N.  W.  290. 

55  Where  writings  on  corner  and  center  stakes  identify  them  with  the  claim, 
a  posted  notice  of  location  is  not  essential  to  a  proper  marking  of  the  lo- 
cation on  the  ground.  HAWS  v.  VICTORIA  COPPER  MIN.  CO.,  160  U. 
S.  303,  16  Sup.  Ct  282,  40  L.  Ed.  436. 

56LEDOUX  v.  FORESTER  (C.  G.)  94  Fed.  600,  602.  This  decision  was 
rendered  May  22,  1899,  and  the  language  used  was  doubtless  influenced  by 
the  state  statute  of  March  8,  1899,  still  in  force,  which  provided  that,  if  a 
mining  claim  "be  located  on  ground  that  is  covered  wholly  or  in  part  with 
brush  or  trees,  such  brush  shall  be  cut  and  trees  be  marked  or  blazed  along 
the  line  of  such  claim  to  indicate  the  location  of  such  lines."  Laws  Wash. 
1899,  p.  70,  c.  45,  §  2.  See  Charlton  v.  Kelly,  2  Alaska,  532,  156  Fed.  433, 
84  C.  C.  A.  295. 


§  55)  MARKING   THE   LOCATION    UPON   THE    GROUND.  187 

its  boundaries  could  be  readily  traced,  on  or  before  the  28th  day  of 
February,  1895.  The  law  requires  this  marking  of  the  claim  upon  the 
ground  to  be  done  in  such  a  manner  that  any  person  of  reasonable  in- 
telligence may  go  upon  the  ground  and  readily  trace  the  claim  out, 
and  readily  find  the  boundaries  and  limits  of  the  claim,  without  in- 
structions, advice,  or  information  from  any  one  or  thing  other  than 
the  marking  upon  the  ground ;  and  it  is  not  necessary  or  required  that 
such  person  shall  have  a  copy  of  the  notice  of  location  or  necessarily 
use  it  in  the  tracing  the  boundaries  of  the  claim,  but  where  such  notice 
is  posted  upon  the  claim,  and  constitutes  a  part  of  the  marking  of  the 
claim,  it  may  [and  should]  be  used  as  a  part  of  the  means  by  which 
the  boundaries  of  the  claim  can  be  traced.  And  if  you  believe  from 
the  evidence  that  the  defendant,  prior  to  the  28th  day  of  February, 
1895,  failed  to  so  mark  his  claim  upon  the  ground  so  that  any  person 
of  reasonable  intelligence  could  go  upon  the  ground,  either  with  or 
without  a  copy  of  the  notice  of  location,  and  readily  trace  the  claim 
out,  and  find  its  boundaries  and  limits,  your  verdict  should  be  that  the 
claim  was  not  so  marked  on  the  ground  that  its  boundaries  could  be 
readily  traced."  67 

Another  way  of  stating  the  matter  is  the  following :  "Marking  the 
boundaries  of  the  surface  claim  as  required  by  statute  is  one  of  the 
first  steps  towards  a  location.  It  serves  a  double  purpose.  It  operates 
to  determine  the  right  of  the  claimant  as  between  himself  and  the 
general  government  and  to  notify  third  persons  of  his  right.  Another 
seeking  the  benefits  of  the  law,  going  upon  the  ground,  is  distinctly 
notified  of  the  appropriation  and  can  ascertain  its  boundaries.  He  may 
thus  mark  his  own  location  with  certainty,  knowing  that  the  boundaries 
of  the  other  cannot  be  changed  so  as  to  encroach  on  grounds  duly  ap- 
propriated prior  to  the  change.  The  prevention  of  fraud  by  swinging 
or  floating  is  one  of  the  purposes  served."  B8 

The  Minimum  Marking  under  the  Federal  Statute. 

Even  less  marking  than  having  a  post  at  each  of  the  four  corners 
has  on  occasion  sufficed;59  but  while  less  marking  may  be  justified, 
where  the  nature  of  the  ground  makes  it  impossible  to  get  at  some  of 
the  corners  to  mark  them,60  it  certainly  would  seem  on  principle  that 

67  WILLEFORD  v.  BELL  (Cal.)  49  Pac.  6,  8. 

68  POLLARD  v.  SHIVELY,  5  Colo.  309,  317. 

6»  NORTH  NOONDAY  MIN.  CO.  v.  ORIENT  MIN.  CO.  (C.  C.)  1  Fed.  522, 
6  Sawy.  299,  311;  Gleeson  v.  Martin  White  Min.  Co.,  13  Nev.  442,  463; 
Oregon  King  Min.  Co.  v.  Brown,  119  Fed.  48,  55  C.  C.  A.  626.  See  Mt 
Diablo  Mill.  &  Min.  Co.  v.  Callison,  5  Sawy.  439,  449,  Fed.  Cas.  No.  9,886. 

eoEilers  v.  Boatman,  3  Utah,  159,  2  Pac.  66;  Id.,  Ill  U.  S.  356,  4  Sup. 
Ct  432,  28  L.  Ed.  454. 


188  LOCATION   OF  LODE   CLAIMS.  (Ch.  12 

ordinarily  the  federal  requirement  could  not  properly  be  complied  with 
unless  at  least  three  corners  of  the  claim  were  marked.61  It  has  to  be 
admitted,  however,  that  the  federal  Supreme  Court  has  announced  with 
reference  to  the  marking  of  placer  claims  a  rule  which  would  make 
far  less  marking  do.62  While  the  question  of  whether  the  markings 
are  such  that  the  boundaries  can  be  readily  traced  is  one  of  fact  for 
the  jury,63  the  court  must  decide  whether  there  is  or  was  enough  to  go 
to  the  jury;  but  the  federal  Supreme  Court  has  been  exceptionally 
liberal  in  its  holdings  about  markings. 

State  Statutory  Requirements  for  Markings. 

The  state  statutes  usually  require  at  least  six  stakes,  posts,  or  monu- 
ments— one  at  each  of  the  four  corners,  and  one  in  the  center  of  each 
side  line,  or  in  the  center  of  each  end  line.  Colorado,  Nevada,  North 
Dakota,  South  Dakota,  and  Wyoming  require  posts  at  the  center  of 
each  side  line ;  Idaho  requires  posts  at  each  angle  of  the  side  lines ; 
and  Arizona,  North  Dakota,  Oregon,  and  South  Dakota  'require-  posts 

ei  See  WALSH  v.  ERWIN  (C.  C.)  115  Fed.  531. 

62  McKINLEY  CREEK  MIN.  CO.  v.  ALASKA  UNITED  MIN.  CO.,  183 
U.  S.  563,  22  Sup.  Ct.  84,  46  L.  Ed.  331.  See  Loeser  v.  Gardiner,  1  Alaska, 
641.  Any  marking  on  the  ground  whereby  the  boundaries  can  readily  be 
traced  is  all  that  is  required.  The  federal  statute  does  not  prescribe  the 
marks,  nor  point  out  where  they  shall  be  placed.  North  Noonday  Min.  Co.  v. 
Orient  Min.  Co.,  1  Fed.  522,  6  Sawy.  299;  Jupiter  Min.  Co.  v.  Bodie  Consol. 
Min.  Co.,  11  Fed.  666,  7  Sawy.  96;  OREGON  KING  MIN.  CO.  v.  BROWN, 
119  Fed.  48,  55  C.  C.  A.  626. 

That  it  is  not  enough  to  put  a  single  stake  on  the  claim,  and  post  notices 
on  that,  see  DOE  v.  WATERLOO  MIN.  CO.,  70  Fed.  455,  17  C.  C.  A.  190. 
That  case,  however,  was  decided  before  the  McKinley  Creek  Case,  supra. 
Two  stakes,  set  one  at  each  end  of  the  lengthwise  center  line  of  the  loca- 
tion, were  held  sufficient,  where  one  bore  a  written  notice  that  the  length 
from  stake  to  stake  and  a  specified  number  of  feet  in  width  on  each  side  of 
that  line  was  claimed.  NORTH  NOONDAY  MIN.  CO.  v.  ORIENT  MIN. 
CO.  (C.  C.)  1  Fed.  522,  6  Sawy.  299.  See  Gleeson  v.  Martin  White  Min.  Co., 
13  Nev.  442.  Merely  posting  a  notice  on  a  tree  at  each  end  of  the  claim 
was  held  not  a  sufficient  marking  in  HOLLAND  v.  MT.  AUBURN  GOLD 
QUARTZ  MIN.  CO.,  53  Cal.  149.  That  case,  also,  of  course,  long  antedates 
the  McKinley  Creek  Case,  supra.  Posting  notice  on  a  house,  with  no  ground 
markings  and  no  reference  to  objects  or  monuments  which  would  identify  the 
claim,  was  held  insufficient  in  Malececk  v.  Tinsley,  73  Ark.  610,  85  S.  W. 
81.  The  posting  of  a  notice  on  a  tree,  and  having  the  four  corners  marked 
by  stakes  referred  to  in  the  notice,  was  held  sufficient  in  Eaton  v.  Norris, 
131  Cal.  561,  63  Pac.  856. 

es  Taylor  v.  Middleton,  67  Cal.  656,  8  Pac.  594;  Farmington  Gold  Min. 
Co.  v.  Rhymney  Gold  &  Copper  Co.,  20  Utah,  363,  58  Pac.  832,  77  Am.  St. 
Rep.  913 ;  Fissure  Min.  Co.  v.  Old  Susan  Min.  Co.,  22  Utah,  438,  63  Pac.  587 ; 
MEYDENBAUER  v.  STEVENS  (D.  C.)  78  Fed.  787. 


§  55)  MARKING   THE   LOCATION   UPON   THE   GROUND.  189 

at  the  center  of  each  end  line  —  i.  e.,  at  each  end  of  the  lode.64  Montana 
now  calls,  under  the  Act  of  1907,  for  a  monument  at  each  corner  or 
angle  of  the  claim,  but  leaves  the  effectiveness  of  a  lesser  marking  to 
the  jury. 

The  state  statutes  also  often  prescribe  the  kind  of  posts  or  stakes. 
In  Arizona  stone  monuments  will  do,  if  3  feet  high  ;  but  posts  must  be 
4  feet  above  ground.  In  Colorado,  New  Mexico,  North  Dakota,  South 
Dakota,  Washington,  and  Wyoming  the  posts  must  be  "substantial" 
and  sunk  in  the  ground.65  That  doubtless  means  that  the  land  office 
requirement  at  least  should  be  met,  namely,  each  post  to  be  at  least 
3  feet  long  by  4  inches  square,  set  18  inches  in  the  ground,  or,  if  of 
stone,  to  be  at  least  24  inches  long,  set  12  inches  in  the  ground.66  In 
.Idaho  monuments  must  be  4  feet  above  ground,  and  posts  or  trees 
must  be  4  inches  in  diameter,  or,  if  square,  4  inches  square.  In  Mon- 
tana and  Nevada  trees  and  rocks  in  place  of  specified  size  will  serve. 
In  both  states  posts  must  be  at  least  4  inches  square  by  4  feet  6  inches 
in  length,  set  1  foot  in  the  ground,  with  a  mound  of  stone  or  earth  4 
feet  in  diameter  by  2  feet  in  height  around  the  post;  67  and  when  a 
stone  is  used,  not  a  rock  in  place,  it  must  be  at  least  6  inches  square 
and  18  inches  in  length,  which  in  Montana  must  be  set  two-  thirds  of 
its  length  in  the  ground,  with  a  mound  alongside  4  feet  in  diameter  by 
2  feet  in  height,  and  in  Nevada  must  be  set  two-thirds  of  its  length  in 
a  mound  4  feet  in  diameter  by  2%  feet  in  height.  In  Colorado,  if  bed 
rock  prevents  the  sinking  of  posts,  they  may  be  placed  in  a  pile  of 
stones  ;  and  where  the  proper  placing  of  a  post  is  impractical,  or  dan- 
gerous to  life  or  limb,  the  post,  called  in  such  case  "a  witness  stake," 
may  be  placed  at  the  nearest  practicable  point  and  suitably  marked  to 
designate  the  proper  place.68  Similar  provisions  exist  in  Idaho,  Ne- 
vada, North  Dakota,  South  Dakota,  and  Wyoming. 


e*  On  the  necessity  of  conforming  to  these  requirements,  see 
v.  LYONS,  45  Or.  167,  77  Pac.  81.  Under  the  Montana  statute  of  1907,  where 
lesser  monuments  than  those  called  for  by  statute  are  used,  the  question  of 
whether  the  location  is  so  marked  that  its  boundaries  can  be  readily  traced 
becomes  one  of  fact  for  the  jury  or  for  the  court  trying  the  case  without  a 
jury.  Laws  Mont.  1907,  p.  18.  Query  whether,  under  that  statute,  the  slight 
marking  which  will  suffice  to  meet  the  federal  requirement  will  do  in  Mon- 
tana. 

65  That  a  stake  was  bound  to  a  tree  by  twigs,  instead  of  sunk  in  the  ground, 
was  held  to  be  immaterial  in  McPHERSON  v.  JULIUS,  17  S.  D.  98,  95  N. 
W.  428. 

66  Land  Office  Rule  No.  143. 

67  In  Montana  a  squared  stump  of  the  requisite  size  will  do  in  place  of 
a  post,  and  both  are  to  be  surrounded  by  the  proper  mound.     Laws  1907, 
p.  19. 

68  The  witness  stake  must  indicate  by  course  or  distance,  or  both,  where 


190  LOCATION   OF  LODE   CLAIMS.  (Ch.   12 

The  state  statutes  often  prescribe  the  markings  on  the  stakes  or  posts. 
In  Colorado  the  post  must  be  hewn  or  marked  on  the  side  or  sides  in 
towards  the  claim.  In  Idaho  the  monuments  at  the  corners  and  at 
the  angles  of  side  lines  must  be  marked  with  the  name  of  the  claim  and 
the  corner  or  angle  the  monument  represents,  and,  if  a  post  or  tree, 
it  must  be  hewn  or  marked  upon  the  side  facing  the  discovery.  In 
Montana  and  Nevada  the  trees,  stakes,  or  monuments  must  be  marked 
so  as  to  designate  the  corners,  and  in  Montana  they  are  to  be  marked 
with  the  name  of  the  claim.  In  North  Dakota  and  South  Dakota  the 
posts  must  be  hewn  or  blazed  on  the  side  facing  the  claim,  and  marked 
with  the  name  of  the  lode  and  the  corner,  end,  or  side  of  the  claim 
that  they  respectively  represent.  In  Washington  the  posts  or  monu- 
ments must  bear  the  name  of  the  lode  and  the  date  of  location.  In 
Wyoming  the  requirement  is  the  same  as  in  Colorado. 

fying  the  Claim  to  Natural  Objects  or  Permanent  Monuments. 

In  addition  to  requiring  the  boundaries  to  be  marked,  the  United 
States  statute  provides  that,  if  state  legislation  or  local  rules  compel 
a  record  to  be  made,  that  record  shall  contain,  among  other  things, 
"such  a  description  of  the  claim  or  claims  located  by  reference  to  some 
natural  object  or  permanent  monument  as  will  identify  the  claim."  69 
As  record  seems  everywhere  to  be  required,  it  becomes  essential  to 
consider,  in  connection  with  the  marking  of  boundaries,  how  such  a 
"natural  object  or  permanent  monument"  is  to  be  ascertained  and  the 
claim  referred  to  it  in  such  a  way  as  to  identify  the  claim.  Among 
natural  objects  and  permanent  monuments  are  big  stones,70  cliffs  of 
rock,71  trees,72  mountain  peaks,73  canons,74  lakes  and  rivers,76  the  con- 


the  true  corner  may  be  found.  BEALS  v.  CONE,  27  Colo.  473,  62  Pac. 
83  Am.  St.  Rep.  92.  Where  the  correct  place  for  a  stake  is  on  a  railroad  em- 
bankment, it  must  be  placed  there,  even  under  the  Colorado  statute,  unless 
it  appears  that  it  is  impracticable  to  place  it  there,  or  that  it  would  be  In- 
terfered with  by  the  passage  of  trains.  Id. 

69  Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426). 

70  Russell  v.  Chumasero,  4  Mont.  309,  1  Pac.  713;   Gamer  v.  Glenn,  8  Mont 
371,   20   Pac.   654.     See   Land   Office   Rule  No.    143,    recognizing  for  survey 
corner  stones  and  rock  in  place. 

71  Farmington  Gold  Min.   Co.  v.  Rhymney  Gold  &  Copper  Co.,  20  Utah, 
363,  58  Pac.  832,  77  Am.  St.  Rep.  913. 

72  Quimby  v.  Boyd,  8  Colo.  194,  6  Pac.  462;    Carter  v.  Bacigalupi,  83  Cal. 
187,  23  Pac.  361 ;   Hansen  v.  Fletcher,  10  Utah,  266,  37  Pac.  480. 

7 s  Craig  v.  Thompson,  10  Colo.  517,  16  Pac.  24;  Jackson  v.  Dines,  13  Colo. 
90,  21  Pac.  918;  Vogel  v.  Warsing,  146  Fed.  949,  77  C.  C.  A.  199;  Bismark 
Mountain  Gold  Min.  Co.  v.  North  Sunbeam  Gold  Co.  (Idaho)  95  Pac.  14. 

7  *  Flavin  v.  Mattingly,  8  Mont.  242,  19  Pac.  384;    Duncan  v.  Fulton,  15 

75  Credo  Mining  &  Smelting  Co.  v.  Highland  Mining  &  Milling  Co.  (C.  C.) 
95  Fed.  911. 


§  55)  MARKING    THE   LOCATION  UPON   THE   GROUND.  191 

fluence  of  streams,78  a  neighboring  shaft,77  a  mining  claim,78  posts 
firmly  fixed  in  the  ground,79  a  town,80  a  road,81  and  houses.82  The 
business  of  the  locator  is,  of  course,  to  select  the  most  prominent  natu- 
ral object  or  permanent  monument  possible  under  the  circumstances, 
and,  if  more  than  one  is  accessible,  to  have  at  least  two  such  objects 
or  monuments  to  tie  the  claim  to.  The  whole  purpose  of  the  law, 
namely,  to  enable  other  prospectors  to  identify  the  claim,  should  be 
met  in  the  best  available  way.83 

Time  in  Which  Boundaries  must  be  M-arked. 

There  are  conflicting  views  as  to  the  time  when  the  boundaries  must 
be  marked,  where  the  state  legislation  and  district  rules  fail  to  provide 

Colo.  App.  140,  61  Pac.  244 ;  McKinley  Creek  Mln.  Co.  v.  Alaska  United  Min. 
Co.,  183  U.  S.  563,  22  Sup.  Ct  84,  46  L.  Ed.  331 ;  Wells  v.  Davis,  22  Utah, 
322,  62  Pac.  3. 

7  e  Carter  v.  Bacigalupi,  83  Cal.  187,  23  Pac.  361. 

77  Jupiter  Min.  Co.  v.  Bodie  Consol.  Min.  Co.  (C.  C.)  11  Fed.  666;    North 
Noonday  Min.  Co.  v.  Orient  Min.  Co.  (C.  C.)  1  Fed.  522 ;   Wilson  v.  Triumph 
Consol.  Min.  Co.,  19  Utah,  66,  56  Pac.  300,  75  Am.  St.  Rep.  718. 

78  HAMMER  v.  GARFIELD  MIN.  &  MILL.  CO.,  130  U.  S.  291,  9  Sup.  Ct. 
548,  32  L.  Ed.  964;    Butler  v.  Good  Enough  Min.  Co.,  1  Alaska,  246;    Book 
v.  Justice  Min.  Co.  (C.  C.)  58  Fed.  106;    Seidler  v.  Lafave,  4  N.  M.  369,  20 
Pac.  789  (overruling  Baxter  Mountain  Gold  Min.  Co.  v.  Patterson,  3  N.  M. 
[Gildersleeve]  269,  3  Pac.  741) ;    Morrison  v.  Regan,  8  Idaho,  291,  67  Pac.  955 
(explaining,  yet  impliedly  overruling,  Brown  v.  Levan,  4  Idaho,  794,  46  Pac. 
661 ;   but  see  Clearwater  Short-Line  Ry.  v.  San  Garde,  7  Idaho,  106,  61  Pac. 
137) ;    Londonderry  Min.  Co.  v.  United  Gold  Mines  Co.,  38  Colo.  480,  88  Pac. 
455;    Duncan  v.  Fulton,  15  Colo.  App.  140,  61  Pac.  244  (but  see  Gilpin  Co. 
Min.  Co.  v.-  Drake,  8  Colo.  586,  9  Pac.  787;    Drummond  v.   Long,  9  Colo. 
538,  13  Pac.  543) ;   Carlin  v.  Freeman,  19  Colo.  App.  334,  75  Pac.  26 ;    Kinney 
v.  Fleming,  6  Ariz.  263,  56  Pac.  723;    Riste  v.  Morton,  20  Mont.  139,  49  Pac. 
656;    Bramlett  v.  Flick,  23  Mont.  95,  57  Pac.  869;    Shattuck  v.  Oostello,  8 
Ariz.  22,  68  Pac.  529 ;   Russell  v.  Chumasero,  4  Mont.  309,  1  Pac.  713 ;    South- 
ern Cross  Gold  &  Silver  Min.  Co.  v.  Europa  Min.  Co.,  15  Nev.  383;    Wilson 
v.  Triumph  Consol.  Min.  Co.,  19  Utah,  66,  56  Pac.  300,  75  Am.  St.  Rep.  718 ; 
McCann  v.  McMillan,  129  Cal.  350,  62  Pac.  31;    Wells  v.  Davis,  22  Utah, 
322,  62  Pac.  3.     But  see  Baxter  Mountain  Gold  Min.  Co.  v.  Patterson,  3  N. 
M.  (Johns.)  179,  3  Pac.  741. 

7»  Jupiter  Min.  Co.  v.  Bodie  Consol.  Min.  Co.  (C.  C.)  11  Fed.  666;  Russell 
v.  Chumasero,  4  Mont.  309,  1  Pac.  713 ;  Hansen  v.  Fletcher,  10  Utah,  266,  37 
Pac.  480 ;  Duncan  v.  Fulton,  15  Colo.  App.  140,  61  Pac.  244 ;  Credo  Mining  & 
Smelting  Co.  v.  Highland  Mining  &  Milling  Co.  (C.  C.)  95  Fed.  911 ;  Bram- 
lett v.  Flick,  23  Mont.  95,  57  Pac.  869. 

so  Fissure  Min.  Co.  v.  Old  Susan  Min.  Co.,  22  Utah,  438,  63  Pac.  587. 

si  McCann  v.  McMillan,  129  Cal.  350,  62  Pac.  31. 

ss  Farmington  Gold  Min.  Co.  v.  Rhymney  Gold  &  Copper  Co.,  20  Utah, 
363,  58  Pac.  832,  77  Am.  St.  Rep.  913. 

ss  A  claim's  own  permanent  stone  corner  and  other  boundary  monuments 
were  held  sufficient  reference  in  TALMADGE  v.  ST.  JOHN,  129  Cal.  430, 
62  Pac.  79.  See  cases  cited  in  note  181,  infra.  Parol  evidence  Is  admissible 


192  LOCATION    OF   LODE   CLAIMS.  (Ch.  12 

a  specific  period.  The  proper  interpretation  of  the  federal  and  state 
requirements  in  such  case  would  seem  to  be  to  allow  the  locator  a 
reasonable  time  for  the  marking,  and  such  time  thereafter  as  there 
may  be  prior  to  the  location  of  the  ground  by  other  prospectors.  This 
proper  interpretation  has  been  adopted  by  a  number  of  courts ; 84  but 
in  California  and  in  Oregon  the  rule  is  adopted  that  the  marking  must 
follow  the  discovery  "immediately."  85  The  California  and  Oregon 
cases  would  seem  clearly  to  lay  down  an  erroneous  rule.  The  reason- 
able time  rule  is  the  proper  one.  What  is  a  reasonable  time  in  which 
to  mark  boundaries  depends  upon  the  nature  of  the  ground,  the  means 
of  marking,  etc. ;  but  the  sickness  of  the  locator  is  not,  it  seems,  a  cir- 
cumstance to  be  taken  into  account.86 

The  statutory  periods  fixed  for  the  marking  of  boundaries  vary  con- 
siderably. In  Arizona  and  Washington  90  days  are  allowed.  In 
Montana  and  Oregon  30  days  are  allowed.  In  Nevada  20  days  are 
allowed.  In  Idaho  only  10  days  are  allowed. 

The  location  is  marked  in  time  if  the  boundaries  are  fixed  before 
a  location  by  third  parties  is  attempted.87 

How  to  -Mark  Boundaries. 

It  is  desirable  at  this  point  to  indicate  what  the  locator  should  do  to 
mark  his  boundaries.  For  a  perfectly  rectangular  claim  he  should  pro- 
vide at  least  eight  posts,  so  as  to  meet  the  most  rigid  statutory  require- 
ments, and  for  other  claims  he  should  provide  an  additional  post  for 
each  additional  angle.  These  posts  should  comply  with  the  state  law 
as  to  size,  depth  set  in  ground  or  mound  of  rock,  etc.  If,  as  is  true  in 
a  number  of  states,  the  state  statute  merely  requires  the  posts  to  be 

to  show  that  a  monument  referred  to  In  the  recorded  paper  is  in  fact  per- 
manent. Metcalf  v.  Prescott,  10  Mont.  283,  25  Pac.  1037 ;  Seidler  v.  Lafave.  4 
N.  M.  (Johns.)  369,  20  Pac.  789;  Seidler  v.  Maxfield,  4  N.  M.  (Johns.)  374,  20 
Pac.  794.  See  Russell  v.  Chumasero,  4  Mont.  309,  1  Pac.  713. 

s*  DOE  v.  WATERLOO  MIN.  CO.  (C.  C.)  55  Fed.  11,  70  Fed.  455,  17  O. 
C.  A.  190;  Burke  v.  McDonald,  2  Idaho,  679,  33  Pac.  49;  Sanders  v.  Noble, 
22  Mont.  110,  55  Pac.  1037;  Union  Min.  &  Mill.  Co.  v.  Leitch,  24  Wash.  585, 
64  Pac.  829,  85  Am.  St.  Rep.  961 ;  Gleeson  V.  Martin  White  Min.  Co.,  13  Nev. 
442;  North  Noonday  Min.  Co.  v.  Orient  Min.  Co.  (C.  C.)  1  Fed.  522,  6  Sawy. 
299 ;  Jupiter  Min.  Co.  v.  Bodie  Consol.  Min.  Co.  (C.  C.)  11  Fed.  666,  7  Sawy. 
96.  See  Erhardt  v.  Boaro,  113  U.  S.  527,  5  Sup.  Ct.  560,  28  L.  Ed.  1113; 
Funk  v.  Sterrett,  59  Cal.  613. 

85NEWBILL  v.  THURSTON,  65  Cal.  419,  4  Pac.  409;  PATTERSON  v. 
TARBILL,  26  Or.  29,  37  Pac.  76.  In  Oregon  30  days  is  now  allowed  by  stat- 
ute. Laws  Or.  1901,  p.  140. 

se  DOE  v.  WATERLOO  MIN.  CO.,  70  Fed.  455,  460,  17  C.  C.  A.  190. 

ST  Crown  Point  Min.  Co.  v.  Crismon,  39  Or.  364,  65  Pac.  87;  Sharkey  v. 
Candiani,  48  Or.  112,  85  Pac.  219,  7  L.  R.  A.  (N.  S.)  791.  The  last  Mon- 
tana statute  expressly  so  provides.  Laws  Mont  1907,  pp.  22,  23. 


§55) 


MARKING   THE   LOCATION  UPON   THE   GROUND. 


193 


"substantial,"  it  would  be  well  to  have  them  meet  at  least  the  test  re- 
quired of  posts  when  set  by  the  deputy  mineral  surveyor  in  an  author- 
ized survey,  viz.:  "Second.  A  post  at  least  3  feet  long  by  4  inches 
square,  set  18  inches  in  the  ground  and  surrounded  by  a  substantial 
mound  of  stone  or  earth."  88  Such  a  mound  should  be  at  least  4  feet  in 
diameter  by  2^  feet  in  height.  The  state  law  must  in  any  event  be 
complied  with.89 

These  posts  should  be  set,  one  at  each  of  the  four  corners,  one  at 
the  center  of  each  side,  and  one  at  the  center  of  each  end  line,  and 
they  should  be  so  placed  that  the  end  lines  will  be  parallel.  The  latter 
point  will  be  emphasized  when  we  consider  extralateral  rights.  If 
there  are  angles  in  the  side  lines,  an  extra  post  should  be  placed  at 
each  angle.  No  angles  should  be  allowed  in  the  end  lines,  which  should 
be  parallel.  The  posts  would  then  be  located  as  follows : 


The  center  posts,  as  well  as  the  corner  ones,  should  be  numbered. 
Each  stake  should  be  blazed  on  the  side  toward  the  discovery,  and  on 
the  blazed  part  should  be  written  the  number  of  the  stake,  the  name 
of  the  claim,  and  the  date  of  location.  Though  the  latter  date  seems 
to  be  required  only  in  Washington,  it  is  well  to  comply  with  the 
strictest  tests  in  all  cases.  If  one  does  more  than  the  state  statute  re- 
quires, no  harm  is  done ;  but  one  must  not  do  less.  If  under  the  local 
statute  still  more  needs  to  be  done,  as,  for  instance,  to  blaze  trees,  cut 
away  brush,  etc.,  so  as  to  enable  an  intelligent  searcher  for  the  claim 
to  find  it,  that  should  be  done.  Then  the  locator  should  measure  the 
distance  from  his  discovery  shaft,  and  ascertain  the  direction  therefrom 
of  the  natural  objects  or  permanent  monuments  selected. 

«8  Land  Office  Regulations  Approved  May  21,  1907,  rule  143. 

«»  COPPER  GLOBE  MIN.  CO.  v.  ALLMAN,  23  Utah,  410,  64  Pac.  1019. 
In  making  a  relocation,  posts  or  monuments  already  on  the  ground  may  in 
some  states  be  adopted.    CON  WAY   v.   HART,    129  Cal.   480,   62  Pac.  44; 
BROCKBANK  v.  ALBION  MIN.  CO.,  29  Utah,  367,  81  Pac.  863. 
COST.  Mm.  L.— 13 


194  LOCATION   OF  LODE    CLAIMS.  (Ch.   12 

In  placing  the  posts  careful  measurements  should  be  taken,  for  while 
as  a  rule  the  statutes  are  liberally  construed,  and  slight  variations  are 
immaterial,  some  courts  take  a  different  view  of  the  situation.  For  in- 
stance, in  Oregon  a  failure  to  establish  a  center  end  stake  was,  with 
other  changes,  held  fatal ;  90  and  in  Colorado  the  same  was  held  true 
of  a  corner  stake.91  In  Colorado,  also,  cutting  a  letter  into  solid  rock 
was  held  not  equivalent  to  placing  a  stake.  92  So  the  mere  fact  that  it 
was  difficult  or  inconvenient  to  put  the  stake  where  it  belonged  was 
held  not  to  be  enough  to  excuse  putting  it  there  under  a  statute  al- 
lowing "a  witness  stake"  to  be  placed  at  the  nearest  practicable  point 
to  a  place  impracticable  or  dangerous  to  life  and  limb.93  On  the  other 
hand,  it  is  held  in  Colorado  that,  if  the  corner  stakes  are  placed  proper- 
ly, it  is  not  a  fatal  defect  not  to  have  the  center  side  line  stakes  exactly 
in  the  center;9*  and  in  Utah  the  absence  of  a  corner  stake  is  not  fa- 
tal.95 The  Utah  case,  however,  is  a  decision  under  the  federal  stat- 
ute only. 

In  Brockbank  v.  Albion  Min.  Co.  the  court  says:  "The  appellant, 
among  other  things,  contends  that  the  court  erred  in  finding  that  neith- 
er at  the  time  of  making  the  location  nor  at  any  time  since  were  the 
boundaries  of  the  Homestake  No.  1  marked  by  posts  or  monuments,  so 
as  to  indicate  the  boundaries  of  the  claim.  We  think  this  point  is  well 
taken.  Such  a  finding  does  not  appear  to  be  warranted  by  the  evi- 
dence. While  the  boundaries  were  not  fully  marked  on  the  day  the 
location  notice  was  posted,  because,  the  snow  then  being  from  10  to 
15  feet  deep,  it  was  impracticable  to  do  so,  still  the  notice  having  con- 
tained a  full  description  of  the  claim  by  courses  and  distance  from  the 
discovery  monument,  where  it  was  posted,  and  the  claim  being  a  re- 
location of  one  covering  the  same  ground,  the  corners  of  which  were 
yet  substantially  in  place,  the  location  was  at  least  sufficient  to  entitle 
the  locator  to  perfect  it  within  a  reasonable  time,  or  before  other  par- 
ties had  acquired  rights  in  the  ground.  When  afterwards,  before  any 
rights  of  the  defendant  or  adverse  rights  intervened,  the  plaintiff  had 
the  old  monuments  repaired,  and  the  boundaries  marked  with  a  post 
3  inches  thick  and  about  4  feet  high  set  in  a  stone  monument  at  each 
corner,  the  location  'became  complete,  and  subsequent  locators  were 

90  Wright  v.  Lyons,  45  Or.  167,  77  Pac.  81. 

»i  Beals  v.  Cone,  27  Colo.  473,  62  Pac.  948,  83  Am.  St.  Rep.  92. 

» 2  Taylor  v.  Parenteau,  23  Colo.  368,  48  Pac.  505. 

»3  CRCESUS  MINING,  M.  &  S.  CO.  v.  COLORADO  LAND  &  M.  CO.  (C. 
C.)  19  Fed.  78;  Beals  v.  Cone,  27  Colo.  473,  62  Pac.  948,  83  Am.  St.  Rep.  92. 

94  Pollard  v.  Shively,  5  Colo.  309. 

95WARNOCK  v.  DE  WITT,  11  Utah,  324,  40  Pac.  205.  So  in  Utah  the 
lack  of  a  side  line  monument,  caused  by  the  inaccessible  nature  of  the  ground, 
was  held  to  be  immaterial  in  Eilers  v.  Boatman,  3  Utah,  159,  2  Pac.  66. 


§  55)  MARKING   THE   LOCATION   UPON   THE    GROUND.  195 

bound  to  take  notice  of  the  plaintiff's  rights.  Corner  monuments  hav- 
ing formerly  been  placed  on  the  ground,  and  their  location  correspond- 
ing with  the  calls  in  the  notice,  the  locator,  under  the  circumstances, 
had  a  right  to  adopt  these  monuments  by  repairing  or  reconstructing 
them  as  was  necessary,  and  the  notice  of  location  could  properly  be 
made  to  refer  to  the  boundary  monuments  or  stakes  of  the  previous 
location."  96 

With  reference  to  staking — i.  e.,  putting  up  the  boundary  marks — it 
should  be  noted  that  the  stakes  may  be  set  on  prior  located  ground, 
or  even  on  patented  ground,  if  only  it  be  done  peaceably  and  openly. 
Where  fractional  pieces  only  of  land  are  left  by  prior  locations,  it  is 
highly  desirable  to  lay  out  the  location  of  such  pieces  with  parallel  end 
lines,  so  as  to  have  extralateral  rights,  and  if,  to  include  the  whole  un- 
located  ground,  it  is  necessary  to  put  all  the  stakes  on  previously  lo- 
cated -ground,  the  location,  if  such  placing  of  stakes  is  peaceably  done, 
will  be  valid.97  The  same  is  true  of  patented  ground,  whether  miner- 
al,98 or  a  mill  site,09  or  agricultural  land.100  Then,  too,  under  the  de- 


»e  BROCKBANK  v.  ALBION  MIN.  CO.,  29  Utah,  367,  81  Pac.  863.  A  re- 
locator  may  adopt  his  former  stakes.  Conway  v.  Hart,  129  Cal.  480,  62 
Pac.  44. 

»7  DEL  MONTE  MINING  &  MILLING  CO.  v.  LAST  CHANCE  MINING 
&  MILLING  CO.,  171  U.  S.  55,  18  Sup.  Ct  895,  43  L.  Ed.  72;  Cleary  v. 
Skiffich,  28  Colo.  362,  65  Pac.  59,  89  Am.  St.  Rep.  207 ;  Davis  v.  Shepherd, 
31  Colo.  141,  72  Pac.  57;  Empire  State-Idaho  Mining  &  Developing  Co.  v. 
Bunker  Hill  &  Sullivan  Mining  &  Concentrating  Co.,  114  Fed.  417,  52  C.  C. 
A.  219 ;  Id.,  131  Fed.  591,  66  C.  C.  A.  99 ;  Bunker  Hill  &  Sullivan  Mining  & 
Concentrating  Co.  v.  Empire  State-Idaho  Mining  &  Developing  Co.  (C.  C.) 
134  Fed.  268;  McElligott  v.  Krogh,  151  Cal.  126,  90  Pac.  823.  See  Hustler 
and  New  Year  Lode  Claims,  29  Land  Dec.  Dep.  Int.  668 ;  War  Dance  Lode,  29 
Land  Dec.  Dep.  Int.  256.  Such  a  location  vests  in  the  locator  all  free  pub- 
lic land  embraced  within  its  boundaries  and  all  veins  apexing  in  such  free 
public  land.  Crown  Point  Min.  Co.  v.  Buck,  97  Fed.  462,  38  C.  C.  A.  278. 

»8  Hidee  Gold  Mining  Co.,  30  Land  Dec.  Dep.  Int.  420.  See  Bunker  Hill 
&  Sullivan  Mining  &  Concentrating  Co.  v.  Empire  State-Idaho  Mining  &  De- 
veloping Co.,  109  Fed.  538,  542,  48  C.  C.  A.  665 ;  Empire  State-Idaho  Mining 
&  Developing  Co.  v.  Bunker  Hill  &  Sullivan  Mining  &  Concentrating  Co.,  114 
Fed.  417,  419,  52  C.  C.  A.  219.  But  see  State  v.  District  Court,  25  Mont 
572,  65  Pac.  1020,  1024. 

»9  Paul  Jones  Lode,  31  Land  Dec.  Dep.  Int.  359.  But,  if  the  mill  site 
cuts  the  lode  in  two,  both  parts  of  the  lode  cannot  be  patented,  unless  there 
is  a  valid  discovery  on  the  same  vein  on  both  parts.  Id.  That  rule  may 
not  apply  to  a  lode  intersected  by  a  placer.  Volcano  Lode  Mining  Claim, 
30  Land  Dec.  Dep.  Int.  482.  And,  it  seems,  does  not  apply  to  a  lode  in- 
tersected by  a  lode.  See  Crown  Point  Miu.  Co.  v.  Buck,  97  Fed.  402,  4G5,  38 
C.  C.  A.  278. 

100  MiCe  Lode  Mining  Claim,  30  Land  D*><\  Dep.   Int.  481. 


196  LOCATION   OF  LODE   CLAIMS.  (Ch.  12 

cision  in  Lavagnino  v.  Uhlig, 101  it  is  settled  that,  if  the  unpatented  sen- 
ior location  is  abandoned  or  forfeited,  the  conflict  area  will  inure  to  the 
junior  locator  by  virtue  of  those  provisions  of  the  statute  authorizing 
him  to  patent  such  area,  and  consequently  the  junior  locator,  by  putting 
his  lines  over  the  senior  claim,  will  get  a  right  to  acquire  the  conflict 
area,  should  the  senior  abandon  or  forfeit  it. 

Indeed,  even  in  a  location  which  does  not  conflict  with  previously 
located  ground,  it  is  not  material  that  some  or  all  of  the  stakes  are 
by  mistake  set  upon  adjoining  land.  As  the  Montana  Supreme  Court 
says:  "All  that  the  statute  requires,  in  our  opinion,  is  that  the  land 
shall  be  so  marked  upon  the  ground  that  the  boundaries  can  be  readily 
traced.  This  does  not  mean  that  the  marks  shall  be  upon  the  actual 
ground  included  within  the  mining  claim;  but  they  may  be  upon  any 
ground  adjoining  near  enough  to  readily  designate  the  boundaries.  It 
was  certainly  never  intended  that  a  slight  mistake  in  setting  up  stakes 
should  invalidate  the  location.  All  that  was  intended  is  that  a  person 
seeking  to  make  a  subsequent  location  could  go  upon  the  ground  re- 
ferred to  and  from  the  marks  find  the  boundaries  of  the  claim."  102 

Since  the  posts  are  placed  on  previously  located  ground  without  any 
claim  to  priority,  but  either  to  facilitate  the  acquisition  of  full  extralat- 
eral  rights,  or  else  by  accident,  the  previous  locator 'has  no  just  cause 
for  complaint,  and,  as  subsequent  locators  are  fully  apprised  of  the 
situation  by  the  marked  boundaries  of  the  claims,  they  have  no  rights 
that  are  infringed. 

EXCESSIVE  LOCATIONS. 

55a.  The  marking  may  result  in  an  excessive  location  (1)  where  the 
statutory  allowance  in  length  or  width  of  claim  is  exceeded; 
and  (2)  where  the  vein  runs  in  the  claim,  or  departs  from  it, 
in  such  a  way  that  part  of  the  claim  is  distant  from  the 
center  of  the  vein  more  than  the  number  of  feet  allowed  by 
statute. 

Growing  out  of  the  marking  of  boundaries  is  the  question  of  ex- 
cessive locations.-  According  to  the  cases  there  seem  to  be  two  kinds 
of  excessive  locations,  viz.:  (1)  Those  where  the  statutory  allowance 
in  length  or  width  is  exceeded,  as,  for  instance,  where  a  claim  is  laid 

101 198  U.  S.  443,  25  Sup.  Ot.  716,  49  L.  Ed.  1119.  But  see  Farrell  v.  Lock- 
hart,  210  U.  S.  142,  28  Sup.  Ot.  681,  52  L..  Ed.  994. 

102  WEST  GRANITE  MOUNTAIN  MIN.  CO.  v.  GRANITE  MOUNTAIN 
MIN.  CO.,  7  Mont  356,  17  Pac.  547.  See  Doe  v.  Tyler,  73  Cal.  21,  14  Pac. 
375 ;  McElligott  v.  Krogh,  90  Cal.  126,  90  Pac.  823 ;  Watson  v.  Mayberry,  15 
.Utah,  265,  49  Pac.  479;  Perigo  v.  Erwin  (C.  C.)  85  Fed.  904. 


§  55a  (1)  FIRST  KIND   OF   EXCESSIVE   LOCATION.  197 

out  1,600  feet  in  length,  whereas  only  1,500  feet  in  length  can  be  tak- 
«n;  and  (2)  where  the  limit  of  surface  for  a  single  location  is  not  ex- 
ceeded, but  the  vein  runs  in  or  departs  from  the  location  in  such  a 
way  as  to  leave  part  of  the  claim  as  marked  more  than  the  allowed 
statutory  number  of  feet  distant  from  the  center  of  the  vein,  as,  for 
instance,  where  a  claim  1,500  feet  in  length  is  laid  across,  instead  of 
along,  the  strike  of  a  vein.  These  two  kinds  of  excessive  locations  are 
distinct,  and  on  principle  require  different  dispositions.  We  shall  there- 
fore take  them  up  separately. 


THE   FIRST   KIND    OF   EXCESSIVE   LOCATION. 

55a  (1).  In  the  first  kind  of  excessive  location,  the  validity  of  the  lo- 
cation seems  to  turn  on  the  good  faith  of  the  locator.  If  the 
error  is  innocently  made,  the  claim  is  valid;  but  the  excess 
is  void,  and  the  locator  must  draw  in  his  lines,  so  as  to  leave 
that  excess  out.  If  the  error  is  fraudulently  made,  it  seems 
that  the  whole  location  is  void. 

In  considering  those  cases  where  more  surface  ground  is  marked 
off  than  the  law  allows,  it  is  desirable  to  get  in  mind  the  requirements 
of  the  length  and  width  of  locations.  Under  the  act  of  Congress  of 
1866  the  discoverer  of  a  lode  was  allowed  400  feet  in  length  and  each 
associate  locator  200  feet,  not  exceeding  3,000  feet  to  be  taken  under 
one  location,  while  the  width  was  covered  by  the  words  "together  with 
a  reasonable  quantity  of  surface  for  the  convenient  working  of  the 
same,  as  fixed  by  local  rules."  Questions  of  excessive  location  seem 
seldom  to  have  arisen  as  to  locations  made  under  that  statute,  and  it 
is  therefore  to  the  act  of  1872  that  we  turn.  By  the  act  of  Congress  of 
1872  a  claim  may  equal,  but  not  exceed,  1,500  feet  in  length,  and  shall 
not  extend  more  than  300  feet  on  each  side  of  the  middle  of  the  vein 
at  the  surface.103  In  all  the  states  the  full  1,500  feet  in  length  is  allow- 
ed, and  in  most  of  the  states  and  territories  the  full  600  feet  in  width  is 
allowed,  except  where  the  district  rules  prescribe  otherwise.  In  Colora- 
do 300  feet  in  width — i.  e.,  150  feet  on  each  side  of  the  center  of  the 
vein — is  fixed  for  all  locations  except  in  certain  counties,  viz.,  Gilpin, 
Clear  Creek,  Boulder,  and  Summit,  where  only  150  feet  in  width — i.  e., 
75  feet  on  each  side  of  the  center  of  the  vein — can  be  taken.104  In 

loa  Rev.  St.  U.  S.  §  2320  (U.  S.  Comp.  St.  1901,  p.  1424).  Where  the  end 
lines  are  not  at  right  angles  to  the  side  lines,  the  distance  between  the  side 
lines  measures  the  width  of  the  claim.  DAVIS  y.  SHEPHERD,  31  Colo.  141, 
72  Pac.  57. 

104  Mills'  Ann.  St.  Colo.  §  3149. 


198  LOCATION    OF   LODE    CLAIMS.  (Ch.  12: 

North  Dakota  300.  feet  in  width — i.  e.,  150  feet  on  each  side  of  the 
center  of  the  vein — is  fixed  for  all  locations.105 

It  should  be  noticed  that,  in  all  cases  where  the  statutory  length 
or  width  of  surface  is  exceeded,  the  notices  posted  on  the  claim  and 
the  recorded  papers  call  for  only  the  legal  length  or  width.106  It  is  in 
the  marking  on  the  ground  that  the  error  lies ;  but,  of  course,  it  is  just 
there  that  the  evil,  which  consists  in  misleading  prospectors,  lies.  The 
dicta  all  support  the  proposition  that,  if  the  excess  is  fraudulently  stak- 
ed, the  whole  location  is  invalid;107  and  it  has  been  decided  that  an 
inexcusable  mistake  has  the  same  effect.108  It  should  be  noted  that  an 
excessive .  location  may  also  be  invalid  because  the  stakes  are  so  far 
from  where  they  ought  to  be  that  a  reasonable  search  will  not  reveal 
them,  and  so  the  boundaries  of  the  claim  are  not  properly  marked.109 
But  where  the  excess,  whether  in  length  or  width,  is  innocently  embrac- 
ed in  the  boundaries,  the  whole  claim  is  not  rendered  invalid,  but 
only  the  excess  is  void.110  As  the  California  Supreme  Court  has  said: 
"Nor  is  it  material  that  the  lines  and  monuments  of  the  official  sur- 
vey do  not  correspond  to  or  be  identical  with  those  of  the  original  lo- 
cation, since  the  courses  and  distances  are  simply  estimated  by  miners 
in  making  their  locations,  and  hence  it  often  happens  that  claims  are 
located  more  than  1,500  feet  in  length  and  600  feet  in  width ;  and  in 
such  case  the  surveyor  contracts  the  lines  and  draws  in  the  monuments, 
so  as  to  make  the  location  conform  to  the  requirements  of  the  statute, 
the  location  being  void  only  as  to  the  excess."  1X1  In  Hanson  v.  Fletch- 


105  Rev.  Codes  N.  D.  1899,  §  1427. 

ice  in  Pratt  v.  United  Alaska  Min.  Co.,  1  Alaska,  95,  at  page  103,  the 
court  suggests  that  a  mining  location  notice  which  by  its  terms  includes 
more  land  than  can  legally  be  located  invalidates  the  whole  location. 

107  Stemwinder  Min.  Co.  v.  Emma  &  Last  Chance  Gonsol.  Min.  Co.,  2  Ida- 
ho, 456,  21  Pac.  1040;  Hansen  v.  Fletcher,  10  Utah,  266,  37  Pac.  480.  See 
English  v.  Johnson,  17  Cal.  107,  76  Am.  Dec.  574. 

losLEGGATT  v.  STE'WART,  5  Mont.  107,  2  Pac.  320.  See  Hauswirth 
v.  Butcher,  4  Mont.  299,  1  Pac.  714;  Ledoux  v.  Forester  (C.  C.)  94  Fed.  600. 

109  LEDOUX  v.  FORESTER  (C.  C.)  94  Fed.  600. 

no  RICHMOND  MIN.  CO.  v.  ROSE,  114  U.  S.  576,  5  Sup.  Ct.  1055,  29  L. 
Ed.  273;  Jupiter  Min.  Co.  v.  Bodie  Consol.  Min.  Co.  (C.  C.)  11  Fed.  666,  7 
Sawy.  96;  McPherson  v.  Julius,  17  S.  D.  98,  95  N.  W.  428;  Burke  v.  Mc- 
Donald, 2  Idaho,  679,  33  Pac.  49.  See  Stemwinder  Min.  Co.  v.  Emma  & 
Last  Chance  Consol.  Min.  Co.,  2  Idaho,  456,  21  Pac.  1040 ;  Glacier  Mountain 
Silver  Min.  Co.  v.  Willis,  127  U.  S  471,  481,  8  Sup.  Ct.  1214,  32  L.  Ed.  172 ; 
Atkins  v.  Hendree,  1  Idaho,  95;  Conway  v.  Hart,  129  Cal.  480,  62  Pac.  44; 
Hansen  v.  Fletcher,  10  Utah,  266,  37  Pac.  480. 

mHoweth  v.  Sullenger,  113  Cal.  547,  45  Pac.  841.  See  Eilers  v.  Boat- 
man, 3  Utah,  159,  2  Pac.  66. 


§55a(2) 


SECOND   KIND   OF    EXCESSIVE   LOCATION. 


190 


er,  for  instance,  an  excess  of  200  feet  in  length  and  from  40  to  50 
feet  in  width  was  innocently  taken  in,  and  only  the  excess  held  bad.112 
In  that  case  the  point  of  beginning  and  direction  of  the  boundary  lines 
in  the  location  notice  enabled  the  court  to  say  what  was  excess.  In 
any  case  of  doubt  as  to  where  the  excess  lies,  the  locator,  where  the 
mistake  is  innocent,  should  be  given  an  opportunity  to  draw  in  his  lines, 
to  include  if  possible,  just  the  land  he  wants;118  but  of,  course,  if 
he  designates  to  a  third  person  a  part  to  locate  as  excess,  and  that 
third  person  makes  a  void  location,  other  parties  may  locate  thereon.114 


THE  SECOND  KIND  OF  EXCESSIVE  LOCATION. 

55a  (2).  In  the  second  kind  of  excessive  location  the  claim  seems  to  be 
valid  in  any  event;  Jmt  by  the  majority  of  the  few  cases  on 
the  subject  the  excess  is  void,  no  matter  in  how  good  faith  the 
locator  acted.  On  principle  the  test  of  excess  in  such  cases 
shonld  be  the  good  or  bad  faith  of  the  locator  at  the  time  of 
location. 

But  what  of  the  case  where  the  surface  location  is  no  wider  and  no 
longer  in  number  of  feet  than  the  law  allows,  and  yet  the  vein  runs 
in  such  a  way  as  to  make  part  of  the  ground  exceed  the  permissible 
number  of  feet  on  one  side  or  both  sides  of  the  vein  ?  Messrs.  Morri- 
son and  De  Soto  give  the  following  diagram  by  way  of  illustration, 
namely : 

FIGURE  No   7. 


112  HANSEN  v.  FLETCHER,  10  Utah,  266,  37  Pac.  480. 

us  See  McINTOSH  v.  PRICE,  121  Fed.  716,  58  C.  C.  A.  136,  and  Zim- 
merman v.  Funchion  (C.  C.  A.)  161  Fed.  859,  cases  of  excessive  width  in  a 
placer. 

114  Gohres  v.  Illinois  Min.  Co.,  40  Or.  516,  67  Pac.  666.  After  one  tenant 
in  common  has  conveyed  his  interest  to  his  co-tenants,  he  may  with  their 
consent  locate  the  excess  width  of  the  claim  for  himself.  Reagan  v.  Me- 
Kibben,  11  S.  D.  270,  76  N.  W.  943. 


200  LOCATION   OF   LODE   CLAIMS.  (Ch.  12 

And  they  say  that  the  shaded  ground,  which  is  the  land  more  than 
300  feet  from  the  center  of  the  vein,  is  subject  to  a  valid  hostile  dis- 
covery and  location.115  This  is  giving  a  very  literal  interpretation  to 
the  provisions  of  section  2320,  Rev.  St.  U.  S.  (U.  S.  Comp.  St. 
1901,  p.  1424),  that  "no  claim  shall  extend  more  than  300  feet  on 
each  side  of  the  middle  of  the  vein  at  the  surface,"  but  is  supported 
by  two  of  the  three  local  courts  that  have  passed  on  the  point.116  With 
all  deference,  however,  it  appears  to  be  erroneous  doctrine.117  The 
whole  history  of  American  mining  law  is  opposed  to  such  a  strict  con- 
struction of  that  statute.  If  under  the  act  of  1866,  or  under  district 
rules  prior  to  the  act  of  1872,  there  had  been  such  a  provision,  it  would 
doubtless  have  received  the  construction  which  Messrs.  Morrison  and 
De  Soto  favor,  because  at  that  time  the  lode  was  everything,  and  the 
surface  only  a  necessary  incident.  But  since  the  act  of  1872  the  sur- 
face is  as  essential  as  the  lode — indeed,  the  surface  is  so  essential  that 
no  lode  may  be  located  unless  there  is  unappropriated  surface  which 
may  be  so  staked  as  to  include  the  lode118 — and,  in  consequence,  sur- 
face can  properly  be  taken  away  from  a  locator  only  where  the  statute 
necessarily  so  requires.  While  land  is  located  for  the  sake  of  the  vein, 
it  still  remains  true  that  "the  location  is  of  a  piece  of  land  including 
the  vein,"  119  and  that  the  locator  who  substantially  complies  with  the 
statute  and  who  acts  in  good  faith  is  to  be  protected.  The  soundness 
of  this  conclusion  may  be  demonstrated  by  considering  the  difficulties 
of  the  other  view. 

us  Morrison's  Mining  Rights  (13th  Ed.)  pp.  20,  21. 

lie  PATTERSON  v.  HITCHCOCK,  3  Colo.  533;  SOUTHERN  CALIFOR- 
NIA R.  CO.  v.  O'DONNELL,  3  Cal.  App.  11,  85  Pac.  932.  See,  also,  Armstrong 
v.  Lower,  6  Oolo.  393,  400 ;  Colorado  M.  Ry.  Co.  v.  Croman,  16  Colo.  381,  27 
Pac.  256 ;  Wakeman  v.  Norton,  24  Oolo.  192,  49  Pac.  283.  That  the  claim  is 
void  only  as  to  the  excess,  see  McElligott  v.  Krogh,  151  Cal.  126,  90  Pac.  823. 

117  See  WATER  VALE  MIN.  CO.  v.  LEACH,  4  Ariz.  34,  33  Pac.  418. 

us  Traphagen  v.  Kirk,  30  Mont.  562,  77  Pac.  58,  and  cases  cited.  See 
Heil  v.  Martin  (Tex.  Civ.  App.)  70  S.  W.  430. 

"There  is  no  provision  in  the  mining  laws  which  authorizes  the  issue  of 
two  patents  for  the  same  mineral  land,  the  patent  to  one  claimant  to  em- 
brace only  the  surface  of  the  land,  and  the  patent  to  the  other  to  embrace 
only  the  veins  or  lodes  beneath  the  surface.  It  is  not  within  the  contem- 
plation of  the  mining  statutes  that  vein  or  lode  deposits  may  be  claimed, 
located,  and  patented  independently  of  the  surface  ground  connected  with 
and  containing  or  overlying  them."  Lellie  Lode  Mining  Claim,  31  Land 
Dec.  Dep.  Int.  21,  23. 

no  Gleeson  v.  Martin  White  Min.  Co.,  13  Nev.  442,  457.  "Under  the  orig- 
inal statute  the  miner  located  the  lode.  Under  the  later  and  present  law  he 
locates  a  definite  piece  of  land  containing  the  apex  of  the  lode."  Pilot  Hill 
and  Other  Lodes,  35  Land  Dec.  Dep.  Int.  592,  594. 


§  55a  (2) 


SECOND   KIND   OF   EXCESSIVE   LOCATION. 


201 


Everybody  knows  that  veins  almost  never  have  a  straight  line  for  a 
center — their  course  is  irregular — and  yet  the  side  lines  of  a  location  are 
always  straight.  If,  however,  the  statute  above  quoted  is  to  be  taken 
literally,  a  claim  which  has  the  center  of  its  vein  in  its  center  should 
be  represented  as  follows: 

FIGURE  No.  8. 


VE..N 


A  daim  having  a  variable  vein  would  be  represented  thus: 

FIGURE.  No.?. 


Surely  Congress  did  not  intend  such  absurd  shapes  for  locations, 
but  simply  intended  that  there  should  be  a  substantial  compliance  with 
the  statute.  A  literal  interpretation  is  no  more  required  in  the  case 
of  this  statute  than  in  the  case  of  the  statute  forbidding  a  location  un- 
til discovery.120 

But  it  is  with  reference  to  extralateral  rights  that  the  most  serious 
consequences  of  Messrs.  Morrison  and  De  Soto's  contention  might  en- 
sue. It  is  well  established  that  where  end  lines  are  parallel,  and  the 
discovery  vein  comes  in  through  an  end  line  and  departs  through  a  side 
line,  there  are  extralateral  rights.  But  take  a  case  where  the  vein  de- 
parts more  than  300  feet  from  the  other  end  line  and  there  are  diffi- 


120  Creede  &  C.  C.  Min.  &  Mill.  Co.  v.  Uinta  Tunnel  Min.  &  Transp.  Co., 
196  U.  S.  337,  25  Sup.  Ct  266,  49  L.  Ed.  501. 


202 


LOCATION    OF   LODE    CLAIMS. 


(Ch.  12 


culties,  if  Messrs.  Morrison  and  De  Soto's  contention  that  the  claim 
is  excessive  is  to  stand.    Take  figure  No.  10. 

FIGURE.  Mo.  10. 


If  the  literal  interpretation  of  the  act  of  1872  be  correct,  the  black 
lines  other  than  the  vein  represent  the  legal  shape  of  the  claim.  The 
dotted  lines  represent  the  part  actually  marked  on  the  ground,  but  void 
for  excess.  Can  it  be  said  that  the  end  lines  are  parallel,  so  as  to  per- 
mit of  extralateral  rights,  or  must  the  lines  which  Messrs.  Morrison  and 
De  Soto  insist  are  the  legal  end  lines  determine  that  there  are  no  extra- 
lateral  rights,  since  those  actual  end  lines  are  not  parallel?  We  allow 
end  lines  to  be  thrown  over  on  previous  locations  in  order  to  facilitate 
the  acquisition  of  extralateral  rights ;  but  we  permit  that  on  the  theory 
that,  if  the  previous  locations  were  not  there,  the  land  would  legally 
be  included  in  the  new  location.  But  what  about  this  case,  where  by 
supposition  it  is  apparent  that  it  cannot  legally  so  be  included  ?  Every 
instinct  leads  one  to  help  out  the  locator  here ;  but  on  a  literal  inter- 
pretation of  the  statute  how  can  it  be  done  ?  Is  it  not  wrong  to  say  that 
the  legal  end  line,  which  is  not  parallel  to  the  other,  may  be  disregard- 
ed? Certainly,  on  Messrs.  Morrison  and  De  Soto's  theory,  that  would 
seem  to  be  wrong,  and  on  their  theory  extralateral  rights  would  have 
to  be  denied  to  such  a  location. 

Other  difficulties  with  the  literal  interpretation  might  be  suggested; 
but  the  above  are  sufficient  for  our  purpose.  Now,  what  does  the  stat- 
ute mean?  Any  one  familiar  with  mining  knows  that  it  may  take 
months,  and  often  years,  to  ascertain  the  true  course  of  a  vein.121  The 

121  See  CONSOLIDATED  WYOMING  GOLD  MIN.  CO.  v.  CHAMPION 
MIN.  CO.  (C.  C.)  63  Fed.  540,  where,  though  a  vein  had  been  worked  ex- 
tensively for  40  years,  it  was  difficult  to  tell  where  it  actually  ran.  At  page 
548  the  court  says:  "The  Wyoming  vein  has  been  located  and  at  different 
times  worked  upon  during  the  past  40  years,  and  it  is  still  a  disputed  and 
closely  contested  question  as  to  where  the  lode  actually  runs;  and  in  addi- 
tion to  all  the  regular  workings  of  the  mine  it  has  required  the  expenditure 
of  money,  time,  and  labor  in  order  to  enable  the  witnesses  to  testify  with 


§  55a  (2)  SECOND  KIND  OF  EXCESSIVE  LOCATION.  203 

framers  of  the  federal  mining  law  knew  that,  and,  in  consequence,  it 
is  impossible  to  impute  to  Congress  the  intention  that  acts  of  location, 
which  require  only  superficial  investigations,  should  be  subject  to  par- 
tial defeat  by  the  ascertainment,  years  after  the  location,  that  the  vein 
located  runs  in  a  direction  other  than  that  supposed  at  the  time  of  lo- 
cation. The  locator's  surface  is  given  him  to  put  his  buildings  and 
surface  works  on,  and  if  he  does  not  exceed  the  number  of  surface 
feet  allotted  to  one  location,  and  acts  in  good  faith  he  should  retain  the 
surface  located,  even  if  in  fact  the  vein  wanders  in  a  direction  he  did 
not  foresee.  He  does  not  locate  merely  a  vein,  but  instead  "a  piece  of 
land  including  a  vein."  122  Knowledge  at  the  time  the  property  right 
is  acquired  is  the  great  test  as  to  the  acquisition  of  mineral  under  agri- 
cultural and  townsite  patents.123  So  here,  if  at  the  time  of  the  location 
the  locator  honestly  believed  that  his  location  corresponded  with  the 
course  of  the  vein,  the  ground  located  should  all  be  his,  even  though 
the  location  turns  out  to  lie  across,  instead  of  along,  the  strike  of  the 
vein.124  The  only  cases  on  the  subject  that  seem  to  be  distinctly  con- 
trary to  this  view  are  Patterson  v.  Hitchcock,125  Southern  California 

any  degree  of  certainty  to  the  'true  course  and  direction  of  the  vein.'  Every 
practical  miner  knows  the  difficulty  that  is  often  experienced  in  ascertaining 
these  facts.  The  truth  is  that  the  miner  is  often  compelled  by  the  law  to 
make  his  lines  of  location  upon  the  surface  ground  before  such  facts  can 
be  ascertained.  There  is  a  limit  to  the  time  he  can  take  before  marking 
the  boundaries  of  his  claim.  He  is  required  to  exercise  his  best  judgment 
from  the  developments  he  has  been  able  to  make,  and  he  is,  of  course,  con- 
fined to  his  surface  location,  whether  his  judgment  was  right  or  wrong. 
The  statute  should  be  so  construed  as  to  give  to  the  locator  what  he  actually 
locates ;  no  more  and  no  less.  It  should  be  liberally  construed  in  his  favor, 
so  as  to  give  him  the  full  benefit  of  the  statute,  in  its  true  spirit  and  intent, 
in  order  to  carry  out  the  wise  and  beneficent  policy  of  the  general  govern- 
ment in  opening  up  the  mineral  lands  for  exploration  and  development." 

122  GLEESON  v.  MARTIN  WHITE  MIN.  CO.,  13  Nev.  442,  457. 

123  DAVIS  v.  WIEBBOLD,  139  U.  S.  507,  11  Sup.  Ct.  628,  35  L.  Ed.  238. 

124  WATER  VALE   MIN.    CO.   v.   LEACH,  4  Ariz.   34,   33  Pac.   418.     Com- 
pare Beik  v.  Nickerson,  29  Land  Dec.  Dep.  Int.  662;    Van  Horn  v.  State,  5 
Wyo.   501,   40  Pac.  964.     But,  if  the  location  is  fraudulently  made,    a   dif- 
ferent situation  is  presented.     Compare  Walsh  v.  Mueller,  16  Mont.  180,  40 
Pac.  292. 

1253  Colo.  533.  See,  also,  Zollars  v.  Evans  (C.  C.)  5  Fed.  172;  Terrible 
Min.  Co.  v.  Argentine  Min.  Co.  (C.  C.)  89  Fed.  583;  Meydenbauer  v.  Stevens 
(D.  C.)  78  Fed.  787.  The  case  of  Taylor  v.  Parenteau,  23  Colo.  368.  48  Pac. 
505,  seems  to  have  been  a  case  where  the  parties  knew  the  course  of  the 
vein  at  the  time  of  the  location.  Prima  facie  the  vein  is  co-extensive  in 
length  with  the  lode  location,  Armstrong  v.  Lower,  6  Colo.  393;  even  when 
the  lode  location  conflicts  with  a  placer  location,  San  Miguel  Consol.  Gold 
Min.  Co.  v.  Bonner,  33  Colo.  207,  79  Pac.  1025.  See  Wakeman  v.  Norton, 
24  Colo.  192,  49  Pac.  283. 


204  LOCATION    OF   LODE    CLAIMS.  (Ch.  12 

Lumber    Ry.    Co.    v.    O'Donnell,126    and    McElligott    v.    Krogh.127 
Against  them  is  the  doctrine  of  Watervale  v.  Leach.128 

After  patent,  of  course,  the  fact  that  a  regular  sized  location  includes 
ground  extending  more  than  300  feet  on  one  side  of  the  lode  does  not 
render  the  patent  invalid  as  to  that  ground.129 


CHANGING  BOUNDARIES. 

55b.  TEe  markings  may  be  changed  from  time  to  time  to  change  bound- 
aries, so  long  as  intervening  rights  of  third  parties  are  not 
infringed,  and  so  long  as  the  proper  amended  notices  and  cer- 
tificates are  posted  and  recorded,  as  required  by  local  rules 
and  statutes. 

Even  though  a  locator  has  marked  his  boundaries  and  recorded  his 
certificate,  he  may  change  the  boundaries,  so  as  to  accord  with  subse- 
quent information  as  to  the  course  of  the  vein,  and  thus  take  in  new 
ground,150  or  so  as  to  make  his  end  lines  parallel,131  or  so  as  to  get 
rid  of  excess  ground  located,132  provided  that  no  intervening  rights  of 
others  are  interfered  with  in  so  doing.133  Amended  certificates  must, 

126  3  Cal.  App.  382,  85  Pac.   932.    This   case  was  decided  on  the  extra- 
ordinary idea  that,  where  side  lines  become  end  lines  for  extralateral  right 
purposes,  they  do  so  for  all  purposes. 

127  151  Cal.  126,  90  Pac.  823. 

128.  "The  statute,  as  we  understand  it,  only  intends  to  prescribe  the  limit 
along  the  course  of  the  lode  that  the  locator  may  claim,  not  that  he  shall 
locate  so  that  the  greatest  dimension  of  his  claim  shall  coincide  with  the 
course  of  the  lode.  *  *  *  Of  course,  Congress  expected  that  the  miner 
would  avail  himself  of  the  privilege  accprded  him,  and  locate  along  the 
course  of  the  lode;  but  it  does  not  require  him  to  do  so.  The  only  result 
of  not  so  locating  is  that  the  locator  gets  less,  in  extent  of  the  lode,  than 
he  otherwise  would  have  located,  and  that,  if  the  side  lines,  instead  of  Athe 
end  lines,  cross  the  course  of  the  lode,  in  order  to  define  the  locator's  rights 
to  pursue  the  lode  on  its  dip,  the  side  lines  will  be  treated  as  end  lines." 
WATERVALE  MIN.  CO.  v.  LEACH,  4  Ariz.  34,  60,  61,  33  Pac.  418,  421. 

129  PEABODY  GOLD  MIN.  CO.  v.  GOLD  HILL  MIN.  CO.  (C.  C.)  97  Fed. 
657;  Argonaut  Consol.  Min.  &  Mill.  Co.  v.  Turner,  23  Colo.  400,  48  Pac. 
685,  58  Am.  St.  Rep.  245. 

isoTonopah  &  S.  L.  Min.  Co.  v.  Tonopah  Min.  Co.  (C.  C.)  125  Fed.  389; 
Seymour  v.  Fisher,  16  Colo.  189,  27  Pac.  240. 

131  Doe  v.  Sanger,  83  Cal.  203,  23  Pac.  365;   Last  Chance  Min.  Co.  v.  Tyler 
Min.  Co.,  61  Fed.  557,  9  C.  C.  A.  613. 

132  Credo  Mining  &  Smelting  Co.  v.  Highland  Mining  &  Milling  Co.  (C. 
C.)  95  Fed.  911. 

133  See  Croesus  Mining,  M.  &  S.  Co.  v.  Colorado  Land  &  M.  Co.  (C.  C.) 
19  Fed.  78;    Golden  Fleece  Gold  &  Silver  Min.  Co.  v.  Cable  Consol.  Gold  & 
Silver  Min.  Co.,  12  Nev.  312. 


§  56)  POSTING   NOTICES   OF   LOCATION.  205 

of  course,  be  recorded,134  and  under  the  Montana  statute  of  1907  it 
would  seem  as  if  an  amended  certificate  would  not  serve  where  the 
changed  boundaries  necessitate  a  change  in  the  point  of  discovery  as 
shown  by  the  discovery  shaft,  but  that  a  complete  relocation  in  such 
case  is  essential.135 

Maintaining  Boundary  Marks. 

Since  monuments  control  courses  and  distances  in  recorded  papers^ 
it  is  highly  desirable  to  keep  them  up.180  But  the  location  is  not  ren- 
dered invalid  if,  without  the  fault  of  the  locator,  the  stakes  are  subse- 
quently removed  or  the  marks  obliterated.137 


POSTING   NOTICES    OF   LOCATION. 

56.  Wliile  the  federal  statute  does  not  require  the  posting  of  a  notice 
of  location  on  the  claim,  nearly  all  the  mining  law  states  and 
territories  require  it.  The  local  requirements  should  be  com- 
plied with  strictly.  Where  the  kind  of  posting  is  not  pre- 
scribed, the  notice  should  be  placed  where  prospectors  may 
easily  find  it.  A  few  jurisdictions  require  the  posting  to 
take  place  immediately  on  discovery,  but  the  most  allow  a 
reasonable  time. 

184  See  sections  57,  57a,  infra. 

i SB  Laws  Mont.  1907,  pp.  21,  22. 

i3«  See  Kinney  v.  Fleming,  6  Ariz.  263,  56  Pac.  723.  Yreka  Min.  &  Mill. 
Co.  v.  Knight,  133  Oal.  544,  65  Pac.  1091;  Meydenbauer  v.  Stevens  (D.  C.) 
78  Fed.  787.  In  POLLARD  v.  SHIVELY,  '5  Colo.  309,  it  was  held  that  a 
monument  to  control  courses  and  distances  must  be  the  one  called  for,  and 
that  where  the  record  called  for  a  "post,"  and  only  a  stump  existed,  there 
was  not  the  monument  called  for.  In  BONANZA  CONSOL.  MIN.  CO.  v. 
GOLDEN  HEAD  MIN.  CO.,  29  Utah,  159,  80  Pac.  736,  the  court  properly 
held,  however,  that  a  stump  was  a  post,  if  intended  as  such.  See  Thallinan 
v.  Thomas  (C.  C.)  102  'Fed.  935.  Where  the  courses  and  distances  are  not 
define'd  with  certainty  by  monuments  or  stakes,  the  calls  in  the  location  cer- 
tificate must  govern.  Treadwell  v.  Marrs  (Ariz.)  83  Pac.  350.  "In  ascertain- 
ing boundaries,  where  monuments  are  definitely  established,  these  control 
courses  and  distances.  Where  these  are  not  definitely  established,  then 
courses  and  distances  must  be  followed,  unless  they  are  irreconcilable,  in 
which  case  courses  prevail  over  distances."  Meyer-Clarke-Rowe  Mines  Co. 
v.  Steinfield  (Ariz.)  80  Pac.  400. 

13TZERRES  v.  VANINA  (C.  C.)  134  Fed.  610;  BOOK  v.  JUSTICE  MIN. 
CO.  (C.  C.)  58  Fed.  106,  114 ;  Moore  v.  Steelsmith,  1  Alaska,  121 ;  McEvoy  v. 
Hyman  (C.  C.)  25  Fed.  596 ;  SMITH  v.  NEWELL  (C.  C.)  86  Fed.  56 ;  Walsh 
v.  Erwin  (C.  C.)  115  Fed.  531,  537;  Temescal  Oil  Mining  &  Development  Co. 
v.  Salcido,  137  Cal.  211,  69  Pac.  1010;  Jupiter  Min.  Co.  v.  Bodie  Consol.  Min. 
Co.  (C.  C.)  11  Fed.  666,  7  Sawy.  96.  Where  the  established  corner  stake  was 
moved  by  third  parties,  its  original  situation  was  allowed  to  prevail  against 


206  LOCATION    OF   LODE    CLAIMS.  (Ch.   12 

The  federal  statute  does  not  require  the  posting  of  a  notice  of  loca- 
tion on  the  claim ;  but,  outside  of  Alaska  and  California,  the  local  stat- 
utes require  it.  In  California  the  state  Supreme  Court  at  one  time 
enumerated  the  posting  of  a  notice  on  the  claim  as  one  of  the  essen- 
tial parts  of  location,138  and  it  certainly  seems  as  if  it  should  be  held 
to  be  such  everywhere,139  except  in  cases  where  the  boundary  stakes 
of  the  claim  have  writings  on  them  which  identify  the  claim;140  but 
a  late  California  case  says  that  the  posting  of  a  notice  is  not  essential, 
in  the  absence  of  a  local  custom  of  miners  requiring  it.141  Even  when 
required  by  a  mining  district  rule,  it  seems  to  be  an  unnecessary  act  as 
against  one  who  is  otherwise  fully  informed  of  the  extent  of  the 
claim.142. 

The  local  statutes  differ  in  requirements.  The  fundamental  need  of 
a  posted  notice  is  to  apprise  other  prospectors  of  the  extent  of  the 
claim.143  Whether  it  is  sufficient  to  answer  that  purpose  is  a  question 
of  fact.144  The  marked  boundaries  are  for  that  purpose,  too;  but 
the  notice  supplements  them,  and  frequently  relieves  the  prospector 
of  the  burden  of  searching  for  them.  Some  states,  therefore,  are  con- 
tent with  requiring  a  very  simple  notice,  not  necessarily  like  the  notice 
required  to  be  recorded  later.  This  is  true  of  Colorado,  Montana,  Ne- 
vada,145 North  Dakota,  South  Dakota,  Washington,  and  Wyoming. 

a  subsequent  locator  in  TONOPAH  &  S.  L.  MIN.  CO.  v.  TONOPAH  MIN.  CO. 
(C.  C.)  125  Fed.  408. 

iss  Adams  v.  Crawford,  116  Cal.  495,  498,  48  Pac.  488. 

139  See  1  Snyder  on  Mines,  §  375.  Everywhere  it  is  a  help  in  tracing  bound- 
aries. MEYDENBAUER  v.  STEVENS  (D.  C.)  78  Fed.  787. 

1*0  HAWS  v.  VICTORIA  COPPER  MIN.  CO.,  160  U.  S.  303,  16  Sup.  Ct.  282, 
40  L.  Ed.  436.  See  Book  v.  Justice  Min.  Co.  (C.'  C.)  58  Fed.  106. 

141  Anderson  v.  Caughey,  3  Cal.  App.  22,  84  Pac.  223.    But  such  notice  is  an 
act  tending  to  show  a  proper  marking  of  the  location.    DAGGETT  v.  YREKA 
MIN.  &  MILL.  CO.,  149  Cal.  357,  86  Pac.  968. 

142  Yosemite  Gold  Min.  &  Mill.  Co.  v.  Emerson,  208  U.  S.  25,  28  Sup.  Ct.  196, 
52  L.  Ed. . 

143  The  stakes  and  monuments  on  the  ground  prevail  over  the  calls  in  the 
notice  of  location.     BOOK  v.  JUSTICE  MIN.  CO.  (C.  C.)  58  Fed.  106;    Han- 
sen  v.  Fletcher,  10  Utah,  266,  37  Pac.  480.    In  an  early  case,  prior  to  the  .act 
of  1866,  it  was  held  that  the  posted  notice  need  only  substantially  identify  the 
lode.    Johnson  v.  Parks,  10  Cal.  446. 

144  Seidler  v.  Lafave,  4  N.  M.  369,  20  Pac.  789;    Wells  v.  Davis,  22  Utah, 
322,  62  Pac.  3 ;   Eilers  v.  Boatman,  111  U.  S.  356,  4  Sup.  Ct.  432,  28  L.  Ed.  454. 

145  gee  Gleeson  v.  Martin  White  Min.  Co.,  13  Nev.  442;    Poujade  v.  Ryan, 
21  Nev.  449,  33  Pac.  659 ;    Brady  v.  Husby,  21  Nev.  453,  33  Pac.  801.    A  sub- 
stantial compliance  with  the  Nevada  statute  was  held  sufficient  in  ZERRES 
v.  VANINA  (C.  C.)  134  Fed.  610.    See,  also,  Porter  v.  Tonopah  North  Star  Tun- 
nel &  Development  Co.  (C.  O )  133  Fed.  756. 


§  56)  POSTING   NOTICES   OF   LOCATION.  207 

Other  states  and  territories  contemplate  the  record  of  a  copy  of  the 
notice  posted,  and,  since  the  federal  and  state  statutes  require  special 
things  to  be  in  the  recorded  notice,  a  location  notice  posted  in  this 
second  group  of  states  and  territories  cannot  be  as  informal  as  in  the 
former.  Such  states  and  territories  are  Arizona,  Idaho,  New  Mexico, 
Oregon,  and  Utah.146 

The  Notice  in  the  First  Group  of  States. 

In  Colorado  and  Washington  the  state  statutes  require  the  posting  of 
a  notice  containing  the  name  of  the  lode,  the  name  of  the  locator,  and 
the  date  of  discovery.  In  Montana  the  approximate  dimensions  of  the 
area  intended  to  be  appropriated  are  to  be  stated  also.  The  Wyoming 
statute  calls  for  "the  name  of  the  discoverer  and  locator,"  the  name 
of  the  claim,  and  the  date  of  discovery.  In  North  and  South  Dakota 
the  Colorado  and  Washington  requirements  exist,  and  in  addition  the 
number  of  feet  claimed  in  length  on  each  side  of  discovery  and  number 
of  feet  claimed  in  width  on  each  side  of  the  lode  must  be  given.  In  Ne- 
vada the  North  and  South  Dakota  requirements  are  added  to  by  the 
statute  calling  also  for  the  general  course  of  the  vein  to  be  stated.  In 
Nevada  two  location  notices  have  to  be  posted,  and  the  first  must  be 
put  at  the  place  of  discovery,  so  that  a  subsequent  prospector  may  not 
only  see  that  ground  is  claimed,  but  also  see  upon  what  alleged  discov- 
ery the  location  is  based.f 

A  notice  that  would  satisfy  the  requirements  of  most  of  these  states 
would  read,  when  modeled  on  the  notice  approved  in  Erhardt  v. 
Boaro : 14T 

"Hawk  Lode. 

"We,  the  undersigned,  who  discovered  this  mineral-bearing  lode 
•June  17,  1907,  claim  1,500  feet  thereof,  750  feet  easterly  and  750  feet 
westerly  from  discovery,  and  300  148  feet  on  each  side  of  the  center  of 
the  vein.  The  general  course  of  the  vein  is  east  and  west. 

"Joel  B.  Erhardt,  %. 
"Thomas  Carroll,  %."  149 

146  See  Copper  Globe  Min.  Oo.  v.  Allman,  23  Utah,  410,  64  Pac.  1019. 

t  Fox  v.  Myers  (Nev.)  86  Pac.  793,  797. 

1*7  113  u.  S.  527,  5  Sup.  Ct  560,  28  L.  Ed.  1113. 

i^s  in  Colorado  and  North  Dakota  150.  feet  on  each  side  of  the  center  of  the 
Yein  would  be  the  limit;  and  in  Gilpin,  Clear  Creek,  Boulder,  and  Summit 
counties  in  Colorado  75  feet  on  each  side  would  be  the  limit. 

149  Such  a  notice  as  this,  posted  on  a  monument  in  the  center  of  the  claim, 
was  held  insufficient,  without  other  marking,  to  make  a  location  in  Gelcich  v. 
Moriarty,  53  Cal.  217.  See  Newbill  v.  Thurston,  65  Cal.  419,  4  Pac.  409 ;  Ma- 
leceok  v.  Tinsley,  73  Ark.  610,  85  S.  W.  81. 


208  LOCATION   OF  LODE   CLAIMS.  (Ch.  12 

Of  course,  a  less  complete  notice  will  do  for  Colorado.  For  instance, 
the  notice  sustained  in  Erhardt  v.  Boaro  read : 

"Hawk  Lode. 

"We,  the  undersigned,  claim  1,500  feet  on  this  mineral-bearing  lode, 
vein,  or  deposit. 

"Dated  June  17,  1880. 

"Joel  B.  Erhardt,  -%'. 

"Thomas   Carroll,  %." 1BO 

Because,  however,  the  notice  did  not  specify  the  number  of  feet 
claimed  on  each  side  of  discovery,  the  locators  were  restricted  to  750 
feet  on  each  side  of  the  discovery  point.161 

The  Colorado  court  has  declared  that :  "A  location  notice,  properly 
made  and  posted  upon  a  valid  discovery  of  mineral,  is  an  appropriation 
of  the  territory  therein  specified  for  the  period  of  60  days.  During  this 
period  no  one  can  initiate  title  thereto  which  would  be  rendered  valid 
by  the  mere  failure  of  the  first  appropriator  to  perform  the  necessary 
discovery  work  within  the  time  prescribed  by  law/' 152  The  notice  is 
essential,  and  its  substance  must  conform  to  the  statute;  but  its  form 
may  vary.  It  is  requisite,  however,  that  the  notice  be  put  where  it  may 
readily  be  found  by  other  prospectors.153  Where  mounds  have  been 
built  that  would  naturally  be  investigated  by  prospectors,  notices  cover- 
ed up  in  the  mounds,  so  as  to  escape  obliteration  by  the  weather,  have 
been  held  good ; 164  but  such  loose  practices  are  not  to  be  encouraged. 

Messrs.  Morrison  and  De  Soto  well  say  of  the  Colorado  act:  "The 
words  of  the  act  require  'a  plain  sign  or  notice' ;  but  there  has  never 
been  any  uniformity  among  prospectors  in  the  details  of  the  notice,  or 
in  the  mode  of  posting  it.  It  may  be  substantially  complied  with  by 
writing  on  a  blazed  tree  or  on  a  board  nailed  at  discovery,  or  by  legible 
carving,  or  Jty  any  other  rude,  but  honest,  form  of  notice,  so  that  it  be 
intelligible  and  open  to  observation ;  but  the  loose  practice  of  writing 

i5o  Compare  COLUMBIA  COPPER  MIN.  CO.  v.  DUCHESS  MINING,  MILL- 
ING &  SMELTING  CO.,  13  Wyo.  244,  79  Pac.  385. 

lei  ERHARDT  v.  BOARO,  113  U.  S.  527,  5  Sup.  Ct.  560,  28  L.  Ed.  1113 ; 
BRAMLETT  v.  FLICK,  23  Mont.  95,  57  Pac.  869.  An  attempt  to  restrict  a 
claimant  to  750  feet  on  one  side  of  discovery,  because  of  loose  wording  of  the 
notice,  failed  in  Allen  v.  Dunlap,  24  Or.  229,  33  Pac.  675.  See,  also,  Kinney 
v.  Fleming,  6  Ariz.  263,  56  Pac.  723. 

iB2  Sierra  Blanca  Mining  &  Reduction  Co.  v.  Winchell,  35  Oolo.  13,  83  Pac. 
628. 

IBS  PHILLPOTTS  v.  BLASDEL,  8  Nev.  61. 

16*  DONAHUE  v.  MEISTER,  88  Cal.  121,  25  Pac.  1096,  22  Am.  St.  Rep.  283; 
GIRD  v.  OIL  CO.  (C.  C.)  60  Fed.  531. 


§  56)  POSTING   NOTICES   OF   LOCATION.  209 

on  a  chip  or  stick  thrown  into  the  discovery  hole  is  an  attempt  to  evade 
or  abuse  the  fair  requirement  of  the  law."  15B 

The  Notice  in  the  Second  Group  of  States. 

In  Arizona,  Idaho,  New  Mexico,  Oregon,  and  Utah,  where  a  literal 
or  a  substantial  copy  of  the  posted  notice  is  to  be  recorded,  and  in  Cali- 
fornia, where  the  custom  is  to  that  effect,  the  notice  must  comply  with 
the  federal  requirements  for  record,  wherever  record  is  called  for, 
namely,  it  must  contain  "the  name  or  names  of  the  locators,  the  date 
of  location,  and  such  a  description  of  the  claim  or  claims  located  by 
reference  to  some  natural  object  or  permanent  monument  as  will  iden- 
tify the  claim."  1B6  In  Arizona  it  must  also  contain  the  name  of  the 
claim,  and  the  description  must  contain  the  length  and  width  of  the 
claim  in  feet,  the  distance  from  the  point  of  discovery  to  each  end  of 
the  claim,  and  the  general  course  of  the  claim.  In  Idaho  the  notice 
must  also  contain  the  name  of  the  claim,  the  date  of  discovery,  and 
the  description  must  contain  the  direction  and  distance  claimed  along 
the  ledge  from  discovery,  the  distance  claimed  on  each  side  of  the 
middle  of  the  ledge,  "the  distance  and  direction  from  the  discovery 
monument  to  such  natural  object  or  permanent  monument,  if  any  such 
there  be,  as  will  fix  and  describe  in  the  notice  itself  the  location  of  the 
claim,"  and  the  name  of  the  mining  district,  county,  and  state.  In  New 
Mexico  the  intent  to  locate  the  claim  must  be  stated  in  the  notice.  In 
Oregon  and  Utah  the  requirements  are  substantially  like  those  of 
Arizona.157 

A  notice  that  would  satisfy  the  requirements  of  most  of  these  states 
would  be  like  the  location  certificate  contained  in  the  discussion  of 
record  to  follow,  and  reference  to  that  is  hereby  made.  What  was  said 
about  the  posting  of  the  notice  required  in  other  states  applies  to  notices 
in  the  second  group  of  states. 

Messrs.  'Morrison  and  De  Soto  urge  the  locator,  after  he  has  done 
the  discovery  work  to  the  full  amount,  and  a  little  over,  and  has  mark- 
ed the  boundaries  of  his  claim,  to  measure  carefully  the  depth  of  the 
discovery  shaft,  and  "note  the  exact  result  of  this  measurement  on  the 
location  stake."  158  In  New  Mexico  the  fact  that  the  location  notice 

165  Morrison's  Mining  Rights  (13th  Ed.)  35,  36. 

i^Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426).  See  Carter  v.  Baci- 
galupi,  83  Cal.  187,  23  Pac.  361. 

157  in  Oregon  a  location  was  held  void  for  failure  of  the  notice  to  comply 
with  the  statute.  SHARKEY  v.  CANDIANI,  48  Or.  112,  85  Pac.  219,  7  L.  R 
A.  (N.  S.)  791.  The  record  of  a  substantial  copy  of  the  notice  posted  on  the 
claim  will  do.  Oregon  King  Min.  Co.  v.  Brown,  119  Fed.  48,  55  C.  C.  A.  626. 

IBS  Morrison's  Mining  Rights  (13th  Ed.)  54. 

COST.MIN.L.— 14 


210  LOCATION   OF   LODE    CLAIMS.  (Ch.  12 

was  by  mistake  posted  on  a  part  of  the  claim  overlapping  a  prior  claim 
was  held  not  to  invalidate  the  location.153 

Time  Allowed  for  Posting  Notice. 

Except  in  California,  Idaho,  Oregon,  New  Mexico,  and  Utah,  a 
reasonable  time  would  seem  to  be  allowed  for  the  posting  of  the  location 
notice.  Of  the  places  not  allowing  a  reasonable  time,  Idaho,  which 
has  a  discovery  notice  posted  at  the  time  of  discovery,  provides  for  the 
posting  of  the  location  notice  at  the  time  of  marking  boundaries,  which 
latter  must  take  place  within  10  days  after  discovery,  and  Utah  by 
statute  requires  it  to  be  at  the  time  of  discovery.  That  California  and 
Oregon  will  require  the  posting  to  be  done  immediately  is  evident  from 
their  holdings  on  the  marking  of  boundaries.  In  New  Mexico  there  is 
a  decision  requiring  the  discovery  and  the  posting  of  the  notice  to  be 
practically  contemporaneous.160  A  reasonable  time  should  properly  be 
the  same  time  as  that  allowed  for  marking  boundaries.161 

Where  one  notice  has  been  posted,  but  the  location  is  invalid,  be- 
cause the  discovery  work  has  been  done  on  a  patented  claim,  the  lo- 
cation may  become  good  by  a  subsequent  valid  discovery  without  the 
posting  of  a  new  notice.162  It  has  very  properly  been  decided  that  a 
mining  claim  notice  purporting  to  be  posted  at  the  point  of  discovery 
as  required  by  statute  is  not  prima  facie  evidence  of  discovery,  except 
as  between  conflicting  claimants  who  post  their  notices  at  the  same 
point.163 

Amendment  of  Location  Notice. 

An  interesting  question  is  whether  a  location  notice  can  be  amended, 
before  record,  by  erasing  or  adding  names.  In  general,  it  cannot.16* 
In  one  case  it  is  stated  that  prior  to  the  completion  of  a  location  a 
locator  may  make  a  verbal  transfer  of  his  right  to  locate,  if  no  statute 
requires  a  writing,  and  the  transferee  can  complete  the  location  in  his 
own  name,  or  join  with  the  other  locators  in  making  the  location,165  or 
the  grantee  of  an  invalid  location  may  make  a  totally  new  location  in 

159  Upton  v.  Santa  Rita  Min.  Co.  (N.  M.)  89  Pac.  275" 

leo  Deeney  v.  Mineral  Creek  Milling  Co.,  11  N.  M.  279,  67  Pac.  724. 

161  That  the  notice  gives  a  reasonable  time  to  mark  the  location  and  per- 
form, the  other  required  acts,  see  Union  Min.  &  Mill.  Co.  v.  Leitch,  24  Wash. 
585,  64  Pac.  829,  85  Am.  St.  Rep.  961. 

162  TREASURY  TUNNEL  MINING  &  REDUCTION  OO.  v.  BOSS,  32  Colo. 
27,  74  Pac.  888,  105  Am.  St.  Rep.  60 ;    Haws  v.  Victoria  Copper  Min.  Co.,  160 
U.  S.  303,  16  Sup.  Ct.  282,  40  L.  Ed.  436 ;    Peters  v.  Tonopah  Min.  Co.  (C.  C.) 
120  Fed.  587.     But  see  Sullivan  v.  Sharp,  33  Colo.  346,  80  Pac.  1054. 

163  FOX  v.  Myers  (Nev.)  86  Pac.  793. 

164  Morton  v.  Solambo  Copper  Min.  Co.,  26  Cal.  527. 

ie s  Doe  v.  Waterloo  Min.  Co.,  70  Fed.  455,  459,  17  C.  C.  A.  190.  See,  also, 
Omar  v.  Soper,  11  Colo.  380,  18  Pac.  443,  7  Am.  St.  Rep.  246. 


§  57)  RECORDING.  211 

his  own  name.168    A  location  notice  may  be  amended,  so  long  as  inter- 
vening rights  are  not  prejudiced.167 


RECORDING. 

57.  While  the  federal  statute  does  not  require  a  record,  it  prescribes 
the  minimum  contents,  if  one  is  called  for  by  the  local  rules 
and  statutes.  All  the  mining  states  and  territories  seem  to 
require  a  record  with  the  mining  district  recorder  or  the. 
county  recorder  and  some  require  it  with  both.  The  form 
and  contents  of  the  paper  to  be  recorded  are  prescribed  with 
minuteness  in  Idaho  and  Nevada,  and  everywhere  all  the  stat- 
utory requirements  must  be  met.  The  federal  requirement 
of  such  reference  to  natural  objects  and  permanent  monu- 
ments as  will  identify  the  claim  should  be  complied  with  in 
good  faith. 

The  time  to  record  varies  in  the  different  states  and  territories. 
Except  in  Montana,  Nevada,  and  perhaps  in  Idaho,  a  failure  to 
record  in  time  seems  to  be  fatal,  unless  record  takes  place  be- 
fore a  locator  -who  comes  in  after  the  time  to  record  expires 
makes  a  peaceable  location. 

The  United  States  statutes  do  not  require  any  location  papers  to 
"be  recorded,188  but  provide  that,  if  any  are  recorded,  they  "shall  con- 
tain the  name  or  names  of  the  locators,  the  date  of  location  and  such  a 
description  of  the  claim  or  claims  located  by  reference  to  some  natural 
object  or  permanent  monument  as  will  identify  the  claim."  169  This  is 
the  minimum  requirement  as  to  the  contents  of  a  record,  if  the  state 
or  mining  district  prescribes  record,  and,  in  fact,  has  been  added  to 
in  many  of  the  states.  The  more  rigorous  requirements  have  been 

lee  Miller  v.  Chrisman,  140  Oal.  440,  73  Pac.  1083,  74  Pac.  444,  98  Am.  St. 
Rep.  63. 

167  ware  v.  White  (Ark.)  108  S.  W.  831;  Ford  v.  Campbell  (Nev.)  92  Pac. 
206,  210.  See  Wiltsee  v.  King  of  Arizona  Min.  &  Mill.  Co.,  7  Ariz.  95,  60  Pac. 
896. 

IBS  HAWS  v.  VICTORIA  COPPER  MIN.  CO.,  160  U.  S.  303,  16  Sup.  Ct.  282, 
40  L.  Ed.  436;  Thompson  v.  Spray,  72  Cal.  528,  14  Pac.  182;  Souter  v.  Ma- 
guire,  78  Cal.  543,  21  Pac.  183 ;  Anthony  v.  Jillson,  83  Cal.  296,  23  Pac.  419 ; 
Anderson  v.  Caughey,  3  Cal.  App.  22,  84  Pac.  223 ;  North  Noonday  Min.  Co.  v. 
Orient  Min.  Co.  (C.  C.)  1  Fed.  522,  6  Sawy.  299;  Jupiter  Min.  Co.  v.  Bodie 
Consol.  Min.  Co.  (C.  C.)  11  Fed.  666,  7  Sawy.  96 ;  Golden  Fleece  Gold  &  Silver 
Min.  Co.  v.  Cable  Consol.  Gold  &  Silver  Min.  Co.,  12  Nev.  312 ;  Southern  Cross 
Gold  &  Silver  Min.  Co.  v.  Europa  Min.  Co.,  15  Nev.  383 ;  Payton  v.  Burns,  41 
Or.  430,  69  Pac.  134. 

lea  Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426).  For  a  list  of  nat- 
ural objects  and  permanent  monuments  see  §  55,  supra.  Under  the  foregoing 
section  of  the  federal  statute  the  record  need  not  show  that  the  claim  is  mark- 
ed on  the  ground.  McCann  v.  McMillan,  129  Cal.  350,  62  Pac.  31. 


212  LOCATION   OF   LODE   CLAIMS.  (Ch.  12 

noted  in  discussing  that  group  of  states  requiring  a  copy  of  the  location 
notice  posted  on  the  ground  to  be  recorded  as  the  location  certificate, 
except  that  Nevada  requires  and  Montana  makes  optional  a  statement 
of  the  dimensions  and  location  of  the  discovery  shaft,  or  its  equivalent, 
and  of  the  location  and  description  of  each  corner  and  the  markings 
thereon.170  In  Nevada,  under  the  old  act,  the  recording  of  a  location 
certificate  was  held  not  to  be  essential  to  the  validity  of  a  location, 
except  where  the  claim  was  in  a  district  which  had  a  mining  district 
recorder.171 

The  location  paper  to  be  recorded  seems  to  be  known  everywhere 
to-day  as  "the  location  certificate";  but  in  Montana,  until  recently,  it 
was  known  as  the  "declaratory  statement."  In  Idaho  the  substantial 
copy  of  the  location  notice  must  have  attached  the  affidavit  of  one  of  the 
locators  that  he  is  a  citizen  of  the  United  States,  or  has  declared  his 
intention  to  become  such,  that  he  is  acquainted  with  the  ground  claim- 
ed, and  that  no  part  has  been  located,  or,  if  located,  that  it  has  been 
abandoned  by  failure  to  perform  labor,  and  that  he  has  done  10  feet 
of  new  work.172  In  Montana  the  certificate  of  location  must  be 
verified  by  one  of  the  locators,  or  an  authorized  agent,  or,  if  the  lo- 
cator is  a  corporation,  by  an  officer  or  authorized  agent;  and  when 
it  is  verified  by  an  agent  the  fact  of  agency  must  be  stated  in  the  af- 
fidavit."8 

ire  For  an  insufficient  declaratory  statement,  see  Hahn  v.  James,  29  Mont. 
1,  73  Pac.  965. 

171  FORD  v.  CAMPBELL  (Nev.)  92  Pac.  206;    Zerres  v.  Vanina  (C.  C.)  134 
Fed.  610 ;    Wailes  v.  Davies  (C.  C.)  158  Fed.  667. 

172  The  Idaho  court  has  sustained  the  validity  of  the  affidavit  requirement. 
Van  Buren  v.  McKinley,  8  Idaho,  93,  66  Pac.  936.    Compare  BUTTE  CITY  WA- 
TER CO.  v.  BAKER,  196  U.  S.  119,  25  Sup.  Ct.  211,  49  L.  Ed.  409. 

173  Under  an  earlier  Montana  statute  it  was  held  that  the  locator  might 
make  the  verification  on  information  supplied  by  his  agent,  and  need  not  per- 
sonally see  the  lode.    Wenner  v.  McNulty,  7  Mont.  30,  14  Pac.  643.     Under  a 
later  statute  the  fact  that  the  verification  was  on  information  only  was  held 
not  to  make  it  void.     MARES  v.  DILLON,  30  Mont.  117,  75  Pac.  9G3.     The 
strict  Montana  requirements  were  valid.    BUTTE  CITY  WATER  CO.  v.  BAK- 
ER, 196  U.  S.  119,  25  Sup.  Ct.  211,  49  L.  Ed.  409;   Hickey  v.  Anaconda  Copper 
Min.  Co.,  33  Mont.  46,  81  Pac.  806;  McBurney  v.  Berry,  5  Mont.  300,  5  Pac. 
867.    One  compelled  to  allege  a  location  under  the  strict  Montana  statute  (now 
repealed)  had  to  allege  that  the  declaratory  statement  was  verified  and  that 
it  was  put  on  record  in  the  proper  county.    Power  v.  Sla,  24  Mont.  243,  61  Pac. 
468.    The  old  declaratory  statement  had  to  describe  the  height  of  the  bound- 
ary posts  with  only  substantial  accuracy,  WALKER  v.  PENNINGTON,  27 
Mont.  369,  71  Pac.  156 ;  but  had  specifically  to  describe  the  dimensions  and 
location  of  the  discovery  shaft  and  the  corners  and  markings  thereon,  Hahii 
v.  James,  29  Mont.  1,  73  Pac.  965.    Unless  it  showed  that  the  tunnel  equiva- 
lent of  a  discovery  shaft  cut  the  vein  at  a  depth  of  ten  feet  below  the  surface, 


§  57)  RECORDING.  213 

The  purpose  of  a  location  certificate  or  declaratory  statement  is  to 
give  notice  to  the  world  of  the  existence  and  situs  of  the  claim.  The 
Supreme  Court  of  Colorado  has  pointed  out  that  record,  like  surface 
marking-,  "serves  a  double  purpose.  As  between  the  claimant  and  the 
government  it  preserves  a  memorial  of  the  lands  appropriated  after 
monuments  in  their  nature  perishable  are  swept  away.  It  also  supple- 
ments the  surface  marking,  in  giving  notice  to  third  persons."  174  It 
does  permanently  what  the  ground  markings  and  the  posted  notice  of 
location  do  temporarily.  In  consequence,  if  the  state  statute  does  not 
stand  in  the  way,  by  requiring  burdensome  details,  considerable  loose- 
ness in  the  description  of  the  claim  may  exist,  if  only  subsequent  pros- 
pectors can  reasonably  be  said  to  have  received  from  the  certificate's 
contents  notice  of  the  situs  of  the  location.175  But  the  state  statutes 
may  require  more  specific  description,  and,  if  they  do,  they  must  be 
complied  with,  so  far  as  mandatory  provisions  are  concerned,  or  the 
claim  is  void.176  Occasionally  an  additional  requirement  is  held  to  be 
only  directory.177 

Where  a  senior  discovery  is  followed  up  by  the  marking  of  bounda- 
ries and  the  recording  of  a  location  certificate,  the  claim  will  be  given 
priority  in  Colorado,  although  no  notice  is  posted  as  required  by 
law.178 

Description  of  the  Claim. 

The  troublesome  part  of  the  location  certificate  is  the  description  of 
the  claim.  Prospectors  cannot,  of  course,  be  expected  to  take  lawyers 

no  right  was  acquired  by  it.  Dolan  v.  Passmore,  34  Mont.  277,  85  Pac.  1034. 
But  under  the  Montana  act  of  1907  "no  defect  in  the  posted  notice  or  recorded 
certificate  shall  be  deemed  material  except  as  against  one  who  has  located  the 
same  ground,  or  some  portion  thereof  in  good  faith  and  without  notice."  Laws 
Mont.  1907,  pp.  22,  23. 

IT*  POLLARD  v.  SHIVELY,  5  Colo.  309,  317.  See  Sanders  v.  Noble,  22  Mont. 
110,  55  Pac.  1037. 

ITS  FISSURE  MIN.  CO.  v.  OLD  SUSAN  MIN.  CO.,  22  Utah,  438,  63  Pac. 
587;  McCann  v.  McMillan,  129  Cal.  350,  62  Pac.  31;  Morrison  v.  Regan,  8 
Idaho,  291,  67  Pac.  955 ;  Farmington  Gold  Min.  Co.  v.  Rhymney  Gold  &  Cop- 
per Co.,  20  Utah,  363,  58  Pac.  832,  77  Am.  St.  Rep.  913 ;  Talmadge  v.  St.  John, 
129  Cal.  430,  62  Pac.  79. 

ire  BUTTE  CITY  WATER  CO.  v.  BAKER,  196  U.  S.  119,  25  Sup.  Ct.  211, 
49  L.  Ed.  409 ;  Purdum  v.  Laddin,  23  Mont.  387,  59  Pac.  153 ;  Helena  Gold  & 
Iron  Co.  v.  Baggaley,  34  Mont.  464,  87  Pac.  455 ;  Slothower  v.  Hunter,  15  Wyo. 
189,  88  Pac.  36.  See  Van  Buren  v.  McKinley,  8  Idaho,  93,  66  Pac.  936. 

177  ZERRES  v.  VANINA  (O.  C.)  134  Fed.  610,  616;  Ford  v.  Campbell  (Nev.) 
92  Pac.  206 ;  Wailes  v.  Davies  (C.  C.)  158  Fed.  667. 

iTSMcMILLEN  v.  FERRUM  MIN.  CO.,  32  Colo.  38,  74  Pac.  461,  105  Am. 
St.  Rep;  64. 


214  LOCATION   OF   LODE   CLAIMS.  (Ch.  12 

and  surveyors  around  with  them;  yet  the  federal  statutory  require- 
ment and  the  state  additional  requirements  as  to  a  description  of  the 
property  must  be  met.179  The  location  certificate  is  the  first  step  in  the 
record  chain  of  title,  and  should  be  prepared  carefully.  While  many 
vague  references  to  natural  objects  or  permanent  monuments  have 
been  sustained,180  and  it  has  even  been  held  that  no  other  monuments 
need  be  referred  to  than  the  claim's  own  corner  monuments,181  the  stat- 
ute evidently  contemplates  that  such  a  definite  reference  to  natural  ob- 
jects or  permanent  monuments  other  than  the  boundary  and  other 
marks  of  the  claim  itself  shall  be  given  as  would  enable  a  person  of 
reasonable  intelligence,  who  went  with  a  copy  of  the  location  certificate 
to  search  for  the  claim,  to  find  it  without  undue  trouble.182  Though 
some  earlier  cases  which  applied  a  more  rigid  test  have  been  disap- 
proved or  explained  away,183  and  though  in  Bennett  v.  Harkrader  a 
location  certificate  for  five  hill  claims  of  200  feet  frontage  by  1,000 
feet  "running  from  a  stake  on  the  west  bank  of  Ice  Gulch  to  a  similar 
stake  1,000  feet  distant,  near  the  mouth  of  Quartz  Gulch,"  was  held 
good,  despite  the  court's  admission  that  "it  is  obvious  that  the  descrip- 


179  it  is  mandatory.  Ware  v.  White  (Ark.)  108  S.  W.  831.  See  Fuller  v. 
Harris  (D.  C.)  29  Fed.  814. 

iso  See,  for  instance,  "about  1500  feet  south  of  Vaughn's  Little  Jennie  mine," 
HAMMER  v.  GARFIELD  MIN.  &  MILL.  CO.,  130  U.  S.  291,  9  Sup.  Ct.  548, 
32  L.  Ed.  964 ;  "a  large  bowlder  at  the  west  end  of  the  Tim  lode,"  there  be- 
ing no  Tim  lode,  but  being  a  large  bowlder,  GAMER  v.  GLENN,  8  Mont.  371, 
20  Pac.  654;  "the  nearest  known  claim  is  the  Wild  Bill  mine  on  the  west," 
BONANZA  CONSOL.  MIN.  CO.  v.  GOLDEN  HEAD  MIN.  CO.,  29  Utah,  159, 
80  Pac.  736. 

.  isiHANSEN  v.  FLETCHER,  10  Utah,  266,  37  Pac.  480;  Talmadge  v.  St. 
John,  129  Cal.  430,  62  Pac.  79.  See  Credo  Mining  &  Smelting  Co.  v.  Highland 
Mining  &  Milling  Co.  (C.  C.)  95  Fed.  911 ;  Farmington  Gold  Min.  Co.  v.  Rhyrn- 
ney  Gold  &  Copper  Co.,  20  Utah,  363,  58  Pac.  832,  77  Am.  St.  Rep.  913. 

isa  BRADY  v.  HUSBY,  21  Nev.  453,  33  Pac.  801;  SMITH  v.  NEWELL  (C. 
C.)  85  Fed.  56 ;  BRAMLETT  v.  FLICK,  23  Mont.  95,  57  Pac.  869 ;  Gamer  v. 
Glenn,  8  Mont.  371,  20  Pac.  654;'  Yreka  Min.  &  Mill.  Co.  v.  Knight,  133  Cal. 
544,  65  Pac.  1091;  Londonderry  Min.  Co.  v.  United  Gold  Mines  Co.,  38  Colo. 
480,  88  Pac.  455;  Bismark  Mountain  Gold  Min.  Co.  v.  North  Sunbeam  Gold 
Co.  (Idaho)  95  Pac.  14.  Compare  Dillon  v.  Bayliss,  11  Mont.  171,  27  Pac.  725; 
North  Noonday  Min.  Co.  v.  Orient  Min.  Co.  (C.  C.)  1  Fed.  522,  6  Sawy.  299; 
Jupiter  Min.  Co.  v.  Bodie  Consol.  Min.  Co.  (C.  C.)  11  Fed.  666,  7  Sawy.  96. 
Whether  he  could  ascertain  the  claim  in  that  way  is  for  the  jury  to  say. 
BRAMLETT  v.  FLICK,  supra ;  Eilers  v.  Boatman,  111  U.  S.  356,  4  Sup.  Ct. 
432,  28  L.  Ed.  454.  See  Fissure  Min.  Co.  v.  Old  Susan  Min.  Co.,  22  Utah,  438, 
63  Pac.  587. 

IBS  Brown  v.  Levan,  4  Idaho,  794,  46  Pac.  66,  is  explained  in  Morrison  v- 
Regaa  8  Idaho,  291,  67  Pac.  955. 


§  57)  RECORDING.  215 

tion  is  quite  imperfect,"  184  it  still  remains  true  that  location  certificates 
may  be  declared  void  for  indermiteness  of  description.185 

Where  the  location  certificate  on  its  face  calls  for  natural  objects 
or  permanent  monuments,  or  a  single  one,186  the  sufficiency  of  the  ref- 
erence becomes  a  question  of  fact,187  and  parol  evidence  will  be  admit- 
ted to  explain  or  supply  any  defect  or  omission  and  to  identify  the  ob- 
jects called  for  as  monuments.188  Where  a  call  is  for  a  stake,  the  bet- 
ter opinion  is  that  a  stump  189  or  tree  19°  may  be  shown  to  have  been  in- 
tended, and  vice  versa.191  Where  all  the  monuments  are  actually  on  the 
ground,  the  fact  that  the  direction  of  the  closing  location  line  is  in- 
definitely described  in  the  location  certificate  is  immaterial.192  Where 


184  BENNETT  v.  HARKRADER,  158  U.  S.  441,  443,  15  Sup.  Ct.  863,  39  L. 
Ed.  1046.  See,  also,  Vogel  v.  Warsing,  146  Fed.  949,  77  C.  C.  A.  199. 

IBS  FORD  v.  CAMPBELL  (Nev.)  92  Pac.  206;  Darger  v.  Le  Sieur,  8  Utah, 
160,  30  Pac.  363  (but  see  Farmington  Gold  Min.  Co.  v.  Rhymney  Gold  &  Cop- 
per Co.,  20  Utah,  363,  58  Pac.  832,  77  Am.  St.  Rep.  913) ;  Purdum  v.  Laddin, 
23  Mont.  387,  59  Pac.  153;  Copper  Globe  Min.  Co.  v.  Allman,  23  Utah,  410, 
64  Pac.  1020 ;  Faxon  v.  Barnard  (C.  C.)  4  Fed.  702,  2  McCrary,  44 ;  Mutchnor 
v.  McCarty,  149  Cal.  603,  87  Pac.  85 ;  Baxter  Mountain  Gold  Min.  Co.  v.  Pat- 
terson, 3  N.  M.  (Johnson)  179,  3  Pac.  741 ;  Gilpin  Co.  Min.  Co.  v.  Drake,  8  Colo. 
586,  9  Pac.  787 ;  Drummond  v.  Long,  9  Colo.  538,  13  Pac.  543  (but  see  Craig 
v.  Thompson,  10  Colo.  517,  16  Pac.  24;  Jackson  v.  Dines,  13  Colo.  90,  21  Pac. 
918) ;  Vogel  v.  Warsing,  146  Fed.  949,  77  C.  C.  A.  199 ;  Slothower  v.  Hunter, 
15  Wyo.  189,  88  Pac.  36.  See  Clearwater  Short  Line  Ry.  Co.  v.  San  Garde, 
7  Idaho,  106,  61  Pac.  137.  For  a  very  loose  reference,  upheld  on  the  basis  of 
custom,  see  SMITH  v.  CASCADEN,  148  Fed.  792,  78  O.  C.  A.  458. 

IBS  Mclntosh  v.  Price,  121  Fed.  716,  58  C.  C.  A.  136.  What  are  natural  ob- 
jects and  permanent  monuments  is  considered  under  §  55,  supra. 

IST  BONANZA  CONSOL.  MIN.  CO.  v.  GOLDEN  HEAD  MIN.  CO.,  29  Utah, 
159,  80  Pac.  736.  See  Brady  v.  Husby,  21  Nev.  453,  33  Pac.  801. 

isaMetcalf  v.  Prescott,  10  Mont.  283,  25  Pac.  1037;  Seidler  v.  Maxfield,  4 
N.  M.  374,  20  Pac.  794 ;  Carter  v.  Bacigalupi,  83  Cal.  187,  23  Pac.  361 ;  Dillon 
v.  Bayliss,  11  Mont.  171,  27  Pac.  725;  FARMINGTON  GOLD  MIN.  CO.  v. 
RHYMNEY  GOLD  &  COPPER  CO.,  20  Utah,  363,  58  Pac.  832,  77  Am.  St.  Rep. 
913 ;  Strepey  v.  Stark,  7  Colo.  614,  5  Pac.  111. 

189  BONANZA  CONSOL.  MIN.  CO.  v.  GOLDEN  HEAD  MIN.  CO.,  29  Utah, 
159,  80  Pac.  736.  But  see  POLLARD  v.  SHIVELY,  5  Colo.  309. 

i»o  Hansen  v.  Fletcher,  10  Utah,  266,  37  Pac.  480;  Upton  v.  Larkin,  7  Mont. 
449,  17  Pac.  728. 

191  UPTON  v.  LARKIN,  7  Mont.  449,  17  Pac.  728. 

192  Providence  Gold  Min.  Co.  v.  Burke,  6  Ariz.  323,  57  Pac.  641.    Good  faith 
is  the  important  thing,  if  only  the  description  used  can  reasonably  be  said  to 
impart  notice  to  subsequent  locators.    Farmington  Gold  Min.  Co.  v.  Rhymney 
Gold  &  Copper  Co.,  20  Utah,  363,  58  Pac.  832,  77  Am.  St.  Rep.  913 ;   Bismark 
Mountain  Gold  Min.  Co.  v.  North  Sunbeam  Gold  Co.  (Idaho)  95  Pac.  14.    See 
Talmadge  v.  St.  John,  139  Cal.  430,  62  Pac.  79 


£16  LOCATION   OF  LODE   CLAIMS.  (Ch.  12 

a  recorded  notice  of  location  in  its  description  of  the  claim  erroneously 
referred  to  the  "southeasterly"  end  of  another  claim,  when  the  claim 
had  no  such  boundary,  and  described  a  distance  of  400  feet  as  "4,"  and 
gave  the  courses  of  a  certain  boundary  line  as  "northerly"  and  "south- 
erly," when  the  courses  of  such  line  were  not  true  north  and  south,  yet 
the  notice  correctly  described  the  location1  by  reference  to  a  well-es- 
tablished line  of  another  claim,  and  a  person  of  ordinary  intelligence 
could  have  ascertained  the  ground  located  from  the  description  as  ap- 
plied to  the  monument  on  the  ground,  it  was  held  that  the  recorded 
description  was  sufficient.198  If  all  ,the  statutes  require  is  contained 
in  the  certificate,  the  fact  that  more  is  there  is  immaterial,  if  the  sur- 
plusage is  not  misleading.19*  If  fraud  is  properly  pleaded,  a  material 
date  in  a  location  certificate  may  be  contradicted  as  a  deliberate  mis- 
statement; 195  and  that  should  be  possible  without  specially  pleading 
the  facts.  Under  the  federal  statute  the  date  of  location  is  a  mate- 
rial part  of  the  record ; 196  but,  if  subsequent  locators  are  not  misled  by 
an  error  in  the  date,  the  true  date  of  location  may  be  shown.1§T 

The  Location  Certificate. 

With  reference  to  drawing  a  location  certificate,  the  locator  needs 
to  be  cautioned  to  comply  with  the  requirements  of  the  state  statute, 
as  well  as  of  the  federal  statute,  in  every  respect.198  In  describing  the 
claim  care  should  be  taken  to  note  the  situation  of  the  discovery  shaft 
(in  Nevada  the  dimensions  of  the  shaft  must  also  be  given)  and  to 
describe  the  markings  on  the  corner  and  other  posts  and  monuments. 
Particular  attention  should  be  paid  to  tying  one  or  more  of  the  cor- 
ners, and,  if  practicable,  the  discovery  shaft  also,  to  one  or  more,  pref- 
erably more,  natural  objects  or  permanent  monuments.  One  should  be 
particular  to  attach  any  affidavit  or  verification  required  by  state  statutes, 


193  SMITH  v.  NEWELL  (C.  C.)  86  Fed.  56.  See  Book  v.  Justice  Min.  Co. 
(C.  C.)  58  Fed.  115.  "Northerly"  and  "southerly"  must  not  be  taken  to  mean 
"due  north"  and  "due  south."  WILTSEE  v.  KING  OF  ARIZONA  MIN.  & 
MILL.  CO.,  7  Ariz.  95,  60  Pac.  896;  Glass  v.  Basin  Mining  &  Concentrating 
Co.,  22  Mont.  151,  55  Pac.  1047.  For  a  case  where  "west"  was  read  "east," 
see  Upton  v.  Santa  Rita  Min.  Co.  (N.  M.)  89  Pac.  275. 

is*  Preston  v.  Hunter,  67  Fed.  996,  15  C.  C.  A.  148. 

196  MULDOON  v.  BROWN,  21  Utah,  121,  59  Pac.  720. 

196  id.     By  the  Montana  statute  the  date  of  posting  notice  of  location  Is 
made  the  date  of  location.    Laws  Mont.  1907,  p.  18. 

197  WEBB  v.  CARLON,  148  Oal.  555,  83  Pac.  998,  113  Am.  St  Rep.  305. 

198  That  one-third  of  the  declaratory  statements  in  a  county  are  not  verified 
as  required  by  statute  will  not  make  an  unverified  statement  good.    O'Donnell 
v.  Glenn,  9  Mont.  452,  23  Pac.  1018,  8  L,  R,  A.  629. 


§  57)  RECORDING, 

such  as  exist  in  Idaho  and  Montana.199    The  f  o 
location  certificate  of  a  well-known  Colorado  nhine : 

"State  of  Colorado,  County  of  El  Paso — ss.:       \ 

"Know  all  men  by  these  presents,  that  W.  S.  Stratton,  the  undersign- 
ed, has  this  23d  day  of  March,  1892,  amended,  located,  and  claimed, 
and  by  these  presents  does  amend,  locate,  and  claim,  by  right  of  dis- 
covery and  amended  location,  in  compliance  with  the  mining  acts  of 
Congress  approved  May  10,  1872,  and  all  subsequent  acts,  and  with  sec- 
tion 2409  of  the  General  Laws  of  Colorado,  and  with  local  customs, 
laws,  and  regulations,  1,500  linear  feet  and  horizontal  measurement 
on  the  Independence  lode,  vein,  ledge,  or  deposit,  along  the  vein  there- 
of, with  all  its  dips,  angles,  and  variations,  as  allowed  by  law,  togeth- 
er with  150  feet  on  each  side  of  the  middle  of  said  vein  at  the  surface, 
so  far  as  can  be  determined  from  present  developments,  and  all  veins, 
lodges,  hdges,  or  deposits  and  surface  ground  within  the  lines  of  said 
claim,  290  feet  running  southerly  from  center  of  discovery  shaft  and 
1,210  feet  running  northerly  from  center  of  discovery  shaft;  said  dis- 
covery shaft  being  situate  upon  said  lode,  vein,  ledge,  or  deposit,  and 
within  the  lines  of  said  claim  in  Cripple  Creek  or  Woniack  mining  dis- 
trict, county  of  El  Paso,  and  state  of  Colorado,  described  by  metes  and 
bounds  as  follows,  to  wit :  Beginning  at  corner  No.  1,  whence  a  sharp 
peak  in  the  Sangre  de  Christo  range  bears  S.  47°  40'  W.  Nipple 
Mountain  bears  S.  7°  14'  E.  Thence  N.  2°  10'  E.  1,500  ft.  to  Cor.  No. 
2.  Thence  S.  87°  05'  E.  300  ft.  to  Cor.  No.  3.  Thence  S.  2°  15'  W. 
1,499.96  ft.  to  Cor.  No.  4.  Thence  S.  87°  05'  W.  297.75  ft.  to  Cor.  No. 
1,  the  place  of  beginning.  Located  on  west  side  of  Wilson  creek  north 
of  the  Washington  lode.  This  being  the  same  lode  originally  locat- 
ed on  the  4th  day  of  July,  1891,  and  recorded  on  the  15th  day  of  Sep- 
tember, 1891,  in  Book  1,  page  36,  in  the  office  of  the  recorder  of  El 
Paso  county.  This  further  and  amended  certificate  of  location  is  made 
without  waiver  of  any  previously  acquired  rights,  but  for  the  purpose 
of  correcting  any  errors  in  the  original  location,  description,  or  record, 
to  secure  any  abandoned  overlapping  claims,  and  to  secure  all  the  ben- 
efits of  section  2409,  General  Laws  of  Colorado. 

"Said  lode  was  discovered  the  4th  day  of  July,  A.  D.  1891. 
"Attest :  Of  survey, 

"E.  R.  Warren,  U.  S.  Dep.  Min.  Sur.    "W.  S.  Stratton.    [Seal.] 
"Date  of  amended  location, 
"March  23,  A.  D.  1892. 

IBS  Without  the  required  verification,  the  certificate  or  declaratory  statement 
is  invalid.  Russell  v.  Hoyt,  4  Mont.  412,  2  Pac.  25;  McCowan  v.  Maclay,  16 
Mont.  234,  40  Pac.  602;  HICKEY  v.  ANACONDA  COPPER  MIN.  CO.,  33 
Mont  46,  81  Pac.  806. 


218  LOCATION    OF   LODE    CLAIMS.  (Cll.   12 

"Date  of  amended  certificate, 

"March  26  A.  D.  1892. 

'Recorded  March  29,  1892,  in  Book  1,  p.  22,  of  the  records  of  El 
Paso  county,  Colorado." 

But  for  the  word  "amended,"  used  throughout,  it  is  substantially 
the  regular  location  certificate  in  use  in  Colorado  to-day. 

For  a  Montana  declaratory  statement,  judically  approved,  see  Walk- 
er v.  Pennington.200     Since  that  case,  however,  the  Montana  act  of 
1907  has  made  a  complete  change  in  the  Montana  mining  law. 
The  Time  to  Record. 

The  time  to  record  varies  in  the  different  states  and  territories. 
Ninety  days  after  discovery  are  allowed  in  Alaska,201  and  the  same 
period  from  the  time  of  location  is  granted  in  Arizona.  No  time  is 
fixed  in  California.  Ninety  days  after  location  is  fixed  in  Idaho.  In 
Montana  60  days,  in  Nevada  90  days,  in  New  Mexico  3  months,  in 
Oregon  60  days,  and  in  Utah  30  days,  all  from  date  of  posting  notice, 
are  given  by  statute.  In  Colorado  3  months,  in  North  and  South  Da- 
kota, each,  60  days,  in  Washington  90  days,  and  in  Wyoming  60  days 
from  date  of  discovery  is  the  allowed  time.  Record  is  always  with  the 
county  recorder  where  there  is  no  mining  district  recorder.  In  Ne- 
vada record  must  be  made  with  both,  and  in  Idaho  and  Utah  a  method 
is  provided  for  record  with  both.  Record  is  had  when  the  paper  is 
filed  for  record,  and  the  failure  of  the  recorder  actually  or  properly  to 
record  will  not  be  allowed  to  prejudice  the  locator.202 

Effect  of  Failure  to  Record  in  the  Time  Fixed. 

A  failure  to  record  within  the  statutory  time  will  not  make  the  lo- 
cation invalid,  if  it  is  otherwise  valid,  and  if  adverse  rights  of  third 
parties  do  not  intervene  before  record  is  had.203  The  locator  risks  loss 

200  Walker  v.  Pennington,  27  Mont.  369,  71  Pac.  156. 

201  gee  Butler  v.  Good  Enough  Min.  Co.,  1  Alaska,  246. 

202SHEPARD  v.  MURPHY,  26  Colo.  350,  58  Pac.  588;  WEESE  v.  BAR- 
KER, 7  Colo.  178,  2  Pac.  919;  Myers  v.  Spooner,  55  Cal.  257.  Compare  John- 
son v.  McLaughlin,  1  Ariz.  493,  4  Pac.  130.  But  it  is  doubtful  if  an  entry  made 
by  a  mining  district  recorder  in  a  memorandum  book  which  he  carries  around 
with  him  is  a  sufficient  recording  of  a  claim  located  by  the  recorder  himself. 
FULLER  v.  HARRIS  (D.  C.)  29  Fed.  814. 

203  PRESTON  v.  HUNTER,  67  Fed.  996,  15  C.  C.  A.  148;  Faxon  v.  Barnard 
(C.  C.)  4  Fed.  702.  See  LOCKHART  v.  JOHNSON,  181  U.  S.  527,  21  Sup.  Ct. 
GG5,  45  L.  Ed.  979;  Copper  Globe  Min.  Co.  v.  Allman,  23  Utah,  410,  64  Pac. 
1020 ;  Buffalo  Zinc  &  Copper  Co.  v.  Crump,  70  Ark.  525,  69  S.  W.  572,  -91  Am. 
St.  Rep.  87 ;  Zerres  v.  Vanina  (C.  C.)  134  Fed.  610 ;  Slothower  v.  Hunter,  15 
Wyo.  189,  88  Pac.  36;  Columbia  Copper  Min.  Co.  v.  Duchess  Mining,  Milling 
&  Smelting  Co.,  13  Wyo.  244,  79  Pac.  385.  The  Montana  statute  so  provides. 
I*aws  Mont.  1907,  pp.  22,  23.  In  Nevada  under  the  old  act  tb*>  recording  of 


§  57)  RECORDING.  219 

of  the  claim  by  delay ;  but,  if  he  records  before  the  rights  of  third  par- 
ties attach,  his  title  is  good  by  relation.20*  Moreover,  it  has  been  held 
that  if  the  first  locator  merely  fails  to  record,  and  a  third  person  at- 
tempts a  location  before  the  time  for  the  first  locator  to  record  has 
elapsed,  and  even  records  before  the  first  locator  does,  the  first  locator 
by  recording  gains  priority,  because  the  claim  was  not  open  to  reloca- 
tion by  the  third  person,  and  so  no  rights  of  his  have  intervened.205 
But,  despite  dicta  to  the  contrary,206  it  seems  clear  that  a  third  person, 

a  location  certificate  was  held  not  to  be  essential  to  the  validity  of  a  location, 
except  in  a  district  where  there  was  a  mining  district  recorder.  FORD  v. 
CAMPBELL  (Nev.)  92  Pac.  206 ;  Zerres  v.  Vanina  (C.  C.)  134  Fed.  618 ;  Wailes 
v.  Davis  (C.  C.)  158  Fed.  667. 

204  Failure  to  record  may  be  excused,  because  the  result  of  a  conspiracy  be- 
tween a  locator's  partner  and  the  relocators.  LOCKHART  v.  LEEDS,  195  U. 
S.  427,  25  Sup.  Ct.  76,  49  L.  Ed.  263. 

2osBR^MLETT  v.  FLICK,  23  Mont  95,  57  Pac.  869.  See  Shepard  v.  Mur- 
phy, 26  Colo.  350,  58  Pac.  588.  In  Omar  v.  Soper,  11  Oolo.  380,  18  Pac.  443, 
7  Am.  St.  Rep.  246,  the  Colorado  court  even  held  that  a  third  person,  who 
during  the  time  the  first  locator  had  to  perfect  his  location  made  a  discovery 
outside  the  first  locator's  claim,  and  then,  after  the  first  locator  was  in  de- 
fault for  failure  to  record,  threw  the  lines  of  his  location  over  the  first  lo- 
cator's ground,  did  not  thereby  gain  priority  over  the  first  locator  as  to  the  over- 
lapping ground.  The  court  said:  "No  one  can  therefore  lawfully  enter  the 
territory  so  claimed  [by  the  first  locator]  during  the  [location]  period  named 
for  the  purpose  of  instituting  a  claim  thereto,  and  it  necessarily  and  logically 
follows,  from  an  application  of  the  same  rule  and  principles,  that  no  one,  dur- 
ing this  period,  can  stand  outside  such  appropriated  territory  and  in  any  man- 
ner initiate  a  claim  thereto  capable  of  being  made  valid  in  the  future  by  the 
happening  of  fortuitous  circumstances/'  Id.,  11  Colo.  380,  18  Pac.  446,  7  Am. 
St.  Rep.  246.  The  court's  conclusion  would  seem,  however,  to  be  unsound. 
Compare  Morrison's  Mining  Rights  (13th  Ed.)  84,  85.  As  the  Montana  court 
has  recently  pointed  out,  the  case  of  LAVAGNINO  v.  UHLIG,  198  U.  S.  443, 
25  Sup.  Ct.  716,  49  L.  Ed.  1119,  compels  us  to  say  that  the  first  attempted 
location  does  not  withdraw  from  exploration  the  whole  area  which  the  orig- 
inal locator  could  choose  from,  but  only  precludes  the  acquisition  of  rights 
which  would  conflict  with  his  right  to  first  choice.  HELENA  GOLD  & 
IRON  CO.  v.  BAGGALEY,  34  Mont.  464,  475,  476,  87  Pac.  455.  And,  of  course, 
therefore,  the  second  locator  ought  to  have  all  rights  which  he  would  acquire 
if  the  first  location  were  already  perfected.  What  is  more,  it  must  be  true, 
since  the  case  of  LAVAGNINO  v.  UHLIG,  that  "the  failure  of  the  claimant  to 
complete  his  location  after  posting  his  preliminary  notice  [must]  inure  to  the 
benefit  of  a  junior  locator,  whose  claim  is  in  conflict  with  such  older  claim, 
when  the  inchoate  right  acquired  by  the  discovery  and  the  posting  of  the  no- 
tice never  became  fixed  by  a  completion  of  the  location."  HELENA  GOLD 
&  IRON  CO.  v.  BAGGALEY,  34  Mont.  464,  475,  87  Pac.  455.  The  case  of  FAR- 
RELL  v.  LOCKHART,  210  U.  S.  142,  28  Sup.  Ct  681,  52  L.  Ed.  994,  in  no  way 
negatives  the  giving  of  such  retroactive  effect  to  the  inchoate  senior  claim's 
abandonment.  See  chapter  X,  §  42,  supra. 

ace  see  Eaton  v.  Norris,  131  Cal.  561,  63  Pac.  856;  Talmadge  v.  St.  John, 
129  Cal.  430,  62  Pac.  79. 


220  LOCATION   OF   LODE   CLAIMS.  (Ch.  12 

coming  in  after  the  first  locator's  time  for  record  has  expired  and 
peaceably  making  a  location  over  the  first  locator's  ground,  will  have 
priority  notwithstanding  the  fact  that  the  first  locator  was  in  possession 
and  the  newcomer  had  notice  of  the  first  locator's  situation. 207 

What  a  Location  Certificate  Evidences. 

In  conclusion,  it  may  be  noticed  that  a  location  certificate  has  been 
said  to  be  presumptive  evidence  of  discovery  ;208  but,  in  the  absence 
of  statutes  like  those  in  Idaho, 209  Montana,  or  Nevada,  this  statement 
certainly  seems  unsound.  21°  A  location  certificate,  like  the  marking  of 
the  boundaries,  is  simply  one  of  the  essential  acts  of  location  and  can 
prove  only  itself, 211  except  in  those  cases  where  the  statutes  expressly 
provide  otherwise,  or  where  the  certificate  must  contain  certain  state- 
ments of  fact  and  must  be  under  oath.212  Where  the  distances  and 
courses  set  out  in  the  description  as  recorded  vary  from  the  monuments 
or  markings  made  on  the  ground,  the  latter  prevail  and  will  determine 
the  locus  of  the  claim.218 

207  BROWN  v.  OREGON  KING  MIN.  CO.  (C.  C.)  110  Fed.  728;    COPPER 
GLOBE  MIN.  CO.  v.  ALLMAN,  23  Utah,  410,  64  Pac.  1020.     See  Russell  v. 
Hoyt,  4  Mont  412,  2  Pac.  25;    Lockhart  v.  Wills,  9  N.  M.  344,  54  Pac.  336; 
Belk  v.  Meagher,  104  U.  S.  279,  26  L.  Ed.  735.    But  see  Omar  v.  Soper,  11  Colo. 
380,  18  Pac.  443,  7  Am.  St.  Rep.  246 ;    Zerres  v.  Vanina  (C.  O.)  134  Fed.  610 ; 
Ford  v.  Campbell  (Nev.)  92  Pac.  206;    Wailes  v.  Davies  (C.  C.)  158  Fed.  667. 
Under  the  Montana  statute  of  1907  this  is,  of  course,  not  so.    Laws  Mont.  1907, 
pp.  22,  23.    The  Nevada  cases  are  explainable  by  the  burdensome  nature  of 
the  Nevada  act    See  Morrison's  Mining  Rights  (13th  Ed.)  71.    Similar  reasons 
will  explain  the  dictum  contained  in  the  premature  relocation  case  of  Last 
Chance  Min.  Co.  v.  Bunker  Hill  &  S.  Mining  &  Concentrating  Co.,  131  Fed. 
579,  66  C.  C.  A.  299,  that  under  the  Idaho  statute  the  failure  of  the  locator  to 
record  does  not  justify  a  location  by  others. 

208  CHEESMAN  v.  SHREEVE  (C.  C.)  40  Fed.  787;  Jantzon  v.  Arizona  Cop- 
per Co.,  3  Ariz.  6,  20  Pac.  93 ;    Cheesman  v.  Hart  (C.  C.)  42  Fed.  98 ;   Strepey 
v.  Stark,  7  Colo.  614,  5  Pac.  111.     Compare  Coleman  v.  Davis,  13  Colo.  98,  21 
Pac.  1018;  Vogel  v.  Warsing,  146  Fed.  949,  77  C.  C.  A.  199.    See,  contra,  Smith 
v.  Newell  (O.  C.)  86  Fed.  56. 

200  Bismark  Mountain  Gold  Min.  Co.  v.  North  Sunbeam  Gold  Co.  (Idaho) 
95  Pac.  14. 

210  SMITH  v.  NEWELL  (C.  C.)  86  Fed.  56,  60;   FLICK  v.  GOLD  HILL  & 
L.  M.  MIN.  CO.,  8  Mont.  298,  20  Pac.  807.    That  the  certificates  are  not  con- 
clusive evidence,  see  Uinta  Tunnel  Min.  &  Transp.  Co.  v.  Creede  &  Cripple 
Creek  Min.  &  Mill.  Co.,  119  Fed.  164,  57  C.  C.  A.  200.    In  Montana  a  location 
certificate,  or  a  certified  copy  thereof,  is  prima  facie  evidence  of  all  facts  prop- 
erly recited  therein.    Laws  Mont  1907,  p.  21.    So  in  Nevada.    Laws  Nev.  1907, 
pp.  418-421,  c.  194. 

211  Mutchmor  v.  McCarty,  149  Cal.  603,  87  Pac.  85. 

212  Bismark  Mountain  Gold  Min.  Co.  v.  North  Sunbeam  Gold  Co.  (Idaho)  95 
Pac.  14. 

213  Meydenbauer  v.  Stevens  (D.  C.)  78  Fed.  787;    Steen  v.  Wild  Goose  Min. 
Co.,  1  Alaska,  255 ;  Price  v.  Mclntosh,  1  Alaska,  286 ;  Galbraith  v.  Shasta  Iron 


57a)  AMENDMENTS   OF   RECORD.  221 


AMENDMENTS  OF  RECORD. 

57a.  The  recorded  papers  may  be  supplemented  and  made  good  by  the 
record  of  additional  and  amendatory  papers;  but,  if  the  defect- 
ive record  sought  to  be  cnred  was  so  defective  that  third  par- 
ties were  entitled  to  disregard  it  and  make  locations  for  them- 
selves, the  intervening  rights  of  snch  third  parties  cannot  be 
cnt  ont  by  amendment.  For  a  further  discussion  of  amend- 
ments of  record,  see  §  9  8 a,  infra. 

Because  a  locator  may  want  to  change  the  boundaries  of  his  claim, 
so  as  to  make  it  conform  to  an  unexpected  course  taken  by  the  vein 
as  disclosed  by  the  development  of  the  property,  or  so  as  to  take  in 
more  ground,  where  less  than  the  statutory  ground  has  been  taken  up, 
or  so  as  to  cut  off  the  right  of  a  senior  locator,  who  has  abandoned 
or  rendered  forfeitable  the  senior  location,  to  regain  the  conflict  area  by 
resuming  work,  or  may  want  to  change  the  name  of  the  claim,  or  to 
supply  defects  in  the  original  location  certificate,  or  to  validate  a  pre- 
mature location  or  relocation,  it  is  provided  by  statute  in  some  states, 
and  is  a  right  that  exists  independently  of  special  statutory  provision, 
that  an  amended  location  certificate  may  be  filed  to  show  the  real  sit- 
uation.214 A  claim  may  be  swung  at  right  angles,  if  no  intervening 
rights  of  third  parties  are  infringed ;  215  and  it  has  even  been  held  that, 
prior  to  the  expiration  of  the  time  to  record,  it  may  be  so  swung, 
though  the  rights  of  third  parties,  acquired  with  due  regard  to  what 
the  first  locator  claimed  in  his  location  notice,  have  intervened.216  So  a 
claim's  end  lines  may  be  reformed  to  get  or  vary  extralateral  rights.217 

Co.,  143  Cal.  94,  76  Pac.  901 ;  Treadwell  v.  Marrs  (Ariz.)  83  Pac.  350.    See  Act 
June  30,  1902,  c.  1329,  32  Stat.  545.    Compare  notes  136  and  143,  supra. 

214  See  Wilson  v.  Freeman,  29  Mont  470,  75  Pac.  84,  68  L.  R.  A.  833.     But 
in  Montana  it  seems  that  a  locator  may  not  amend  so  as  to  change  the  point 
of  discovery  as  shown  by  the  discovery  shaft,  but  can  make  such  change  only 
by  a  complete  relocation.    Laws  Mont.  1907,  p.  21. 

215  DUNCAN  v.  FULTON,  15  Colo.  App.  140,  61  Pac.  244. 

216  SANDERS  v.  NOBLE,  22  Mont.  110,  55  Pac.  1037.    While  this  case  would 
liave  been  all  right  as  a  decision  under  the  act  of  1866  (Johnson  v.  Parks,  10 
Cal.  446),  it  cannot  be  supported  as  a  decision  under  the  act  of  1872  (WILT- 
SEE  v.  KING  OF  ARIZONA  MIN.  &  MILL.  CO.,  7  Ariz.  95,  60  Pac.  896).    See 
Morrison's  Mining  Rights  (12th  Ed.)  34.    The  Montana  cases  approving  of  San- 
ders v.  Noble  overlook  the  fact  that  there  the  original  locator  defined  the  situs 
of  his  claim.    If  he  had  not  done  so,  the  case  could,  of  course,  have  been  sup- 
ported on  the  doctrine  that  the  location  notice  "precludes  the  acquisition  of 
rights  within  the  area  which  would  interfere  or  conflict  with  the  right  of  the 
prior  discoverer  to  swiAg  his  claim,  so  as  to  lay  it  along  the  lead  after  his  ex- 
plorations demonstrated  its  strike."    Helena  Gold  &  Iron  Co.  y.  Baggaley,  34 
Mont.  464,  476,  87  Pac.  455. 

*"  TYLER  MIN.  CO.  v.  LAST  CHANCE  MIN.  CO.  (C.  C.)  71  Fed.  848;  Doe 


222  LOCATION   OF   LODE   CLAIMS.  (Ch.  12 

So  the  name  of  the  claim  may  be  changed.218  In  all  such  cases  the 
record  should  be  amended  to  conform  to  the  fact; 219  but  no  new  dis- 
covery in  land  added  is  necessary.220 

Where  the  original  location  is  based  on  a  discovery  within  the  limits 
of  a  valid  existing  location,  it  is  held  in  one  state  to  be  such  a  nullity 
that  an  amended  location  certificate,  filed  after  the  senior  location  be- 
comes subject  to  relocation,  will  not  cure  it.221  In  view  of  the  deci- 
sion of  the  United  States  Supreme  Court  in  Lavagnino  v.  Uhlig  that 
senior  ground  in  conflict  with  a  valid  junior  location  accrues  to  the 
junior  on  the  abandonment  or  forfeiture  of  the  senior,222  and  in  view 
of  the  legitimate  consequences  which  seem  to  flow  from  that  decision, 
this  doctrine  is  open  to  serious  question.  It,  of  course,  is  true  that  by 
amendment  a  void  location  cannot  be  made  to  cut  out  an  intervening 
location ; 223  but  there  was  no  intervening  location  in  the  case  of  Sulli- 
van v.  Sharp.224  The  Colorado  decision*  that  a  valid  junior  location 
could  acquire  conflicting  senior  ground  by  amendment  after  the  senior 
ground  became  subject  to  relocation  225  would  seem  to  call  for  a  dif- 
ferent determination  of  Sullivan  v.  Sharp.226  The  case  of  Lavagnino 
v.  Uhlig,  above  mentioned,  has  not  made  it  any  less  desirable,  however, 
for  the  junior  locator  to  record  an  amended  location  certificate,  if  he 
wishes  to  acquire  beyond  question  conflict  area  subject  to  forfeiture, 
for  only  by  such  amendment  will  he  be  sure  to  cut  off  the  senior  loca- 
tor's right  to  recover  the  conflict  area  by  resuming  work. 227 

v.  Sanger,  83  Cal.  203,  23  Pac.  365;  Empire  State-Idaho  Mining  &  Develop- 
ing Co.  v.  Bunker  Hill  &  Sullivan  Mining  &  Concentrating  Co.,  lol  Fed.  591, 
66  O.  C.  A.  99. 

2i8Butte  Consol.  Min.  Co.  v.  Barker,  35  Mont.  327,  89  Pac.  302,  90  Pac. 
177;  Seymour  v.  Fisher,  16  Colo.  189,  27  Pac.  240.  But  care  must  be  taken 
not  to  mislead  adverse  claimants  thereby. 

219  SEYMOUR  v.   FISHER,   16  Colo.   189,  27  Pac.  240.     But  see  Wiltsee 
v.  King  of  Arizona  Min.  &  Mill.  Co.,  7  Ariz.  95,  60  Pac.  896. 

220  TONOPAH  &  S.  L.  MIN.  CO.  v.  TONOPAH  MIN.  CO.  OF  NEVADA  (C. 
C.)  125  Fed.  389.     But  see  Weed  v.  Snook,  144  Cal.  439,  77  Pac.  1023.     And 
that  it  may  be  necessary,  if  land  claimed  by  others  by  possession  without  dis- 
covery is  sought  to  be  acquired,  see  Biglow  v.  Conradt  (O.  C.  A.)  159  Fed.  868. 

221  SULLIVAN  v.  SHARP,  33  Colo.  346,  80  Pac.  1054.     See  Moyle  v.  Bul- 
lene,  7  Colo.  App.  308,  44  Pac.  69.     But  see  Frisholm  v.  Fitzgerald,  25  Colo. 
290,  53  Pac.  1109. 

2 22  LAVAGNINO  v.   UHLIG,    198  U.   S.   443,  25  Sup.  Ct.  716,  49  L.   Ed. 
1119.    But  see  FARRELL  v.  LOCKHART,  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L. 
Ed.  ,  and  Moorhead  v.  Erie  Min.  &  Mill.  Co.  (Colo.)  96  Pac.  253. 

223  Brown  v.  Gurney,  201  U.  S.  184,  26  Sup.  Ct.  509,  50  L.  Ed.  717. 

224  Sullivan  v.   Sharp,  33  Colo.  346,  80  Pac.  1054. 

225  JOHNSON  v.   YOUNG,  18  Colo.  625,  34  Pac.  173. 

226  33  Colo.  346,  80  Pac.  1054.     "Void"  might  well  be  defined  "voidable." 
See  Kinney  v.  Lundy  (Ariz.)  89  Pac.  496. 

227  See  Oseamp  v.   Crystal  River  Min.  Co.,  58  Fed.  293,  7  C.  C.  A.  233, 
and  dictum  in  Moorhead  v.  Erie  Min.  &  Mill.  Co.  (Colo.)  96  Pac.  253. 


§  571))  ADDING   AND   DROPPING   NAMES   OF   LOCATORS.  223 

An  amended  location  certificate  takes  effect  by  relation  back  to  the 
date  of  the  original  location.228  If  the  location  or  location  certificate 
was  so  defective  as  to  enable  third  parties  to  disregard  it  and  to  lo- 
cate for  themselves,  then  the  intervening  vested  rights  acquired  by  such 
third  parties  cannot  be  cut  out  by  amendment  and  relation  back,229 
though,  if  the  original  location  or  location  certificate  is  merely  irregu- 
lar, such  intervening  rights  may  be  cut  out  by  amendment.230  The 
amended  location  certificate  should  contain  a  statement  that  it  is  an 
amendment,  and  that  it  is  made  and  filed  without  prejudice.  It  has 
been  held,  however,  that  it  need  not  specify  for  what  purpose  it  is  fil- 
ed.231 It  has  been  held,  also,  that  both  the  original  certificate  and  the 
additional  certificate  are  admissible  to  identify  the  claim  with  certainty, 
where  neither  could  do  it  alone.232 

ADDING  AND  DROPPING  NAMES  OF  LOCATORS. 

57b.    In   some    cases  locators   are   allowed  to   drop    the  names    of    old' 
locators  and  to  add  the  names  of  new  ones  by  amendment. 

Whether  the  names  of  old  locators  may  be  dropped  and  new  ones 
added  by  amendment  depends  upon  the  way  they  happen  to  be  drop- 
ped or  added.  A  grantee  of  an  original  locator  may  well  take  the  place 

228  Strepey  v.  Stark,  7  Colo.  614,  5  Pac.  Ill;  McGinnis  v.  Egbert,  8  Colo. 
41,  5  Pac.  652;  Craig  v.  Thompson,  10  Colo.  517,  16  Pac.  24;  McEvoy  v. 
Hymman  (C.  C.)  25  Fed.  596.  See  Milwaukee  Gold  Extraction  Co.  v.  Gordon 
(Mont.)  95  Pac.  995. 

229BEALS  v.  CONE,  27  Colo.  493,  62  Pac.  948,  63  Am.  St.  Rep.  92;  Hall 
v.  Arnott,  80  Cal.  348,  22  Pac.  200 ;  Jordan  v.  Schuerman,  6  Ariz.  79,  53  Pac. 
579;  Brown  v.  Oregon  King  Min.  Co.  (C.  C.)  110  Fed.  728;  Bunker  Hill  & 
Sullivan  Mining  &  Concentrating  Co.  v.  Empire  State-Idaho  Mining  &  De- 
veloping Co.  (C.  C.)  134  Fed.  268;  Jordan  v.  Duke,  6  Ariz.  55,  53  Pac.  197; 
Morrison  v.  Regan,  8  Idaho,  291,  67  Pac.  956;  Bismark  Mountain  Gold  Min. 
Co.  v.  North  Sunbeam  Gold  Co.  (Idaho)  95  Pac.  14;  Butte  Consol.  Min.  Co. 
'  v.  Barker,  35  Mont  327,  89  Pac.  302,  90  Pac.  177 ;  Deeney  v.  Mineral  Creek 
Milling  Co.,  11  N.  M.  279,  67  Pac.  724.  See  Gilbson  v.  Choteau,  13  Wall.  (U. 
S.)  101,  20  L.  Ed.  534.  A  defective  relocation  certificate  cannot  be  cured  by 
amendment,  so  as  to  destroy  the  effect  of  a  resumption  by  the  original  lo- 
cator. FIELD  v.  TANNER,  32  Colo.  278,  75  Pac.  916. 

230  McEvoy  v.  Hymman  (C.  C.)  25  Fed.  596 ;    Craig  v.  Thompson,  10  Oolo. 
517,  16  Pac.  24;    Cheesman  v.  Shreeve  (C.  C.)  40  Fed.  787.     See  Frisholm  v. 
Fitzgerald,  25  Colo.  290,  53  Pac.  1109.     The  amended  location  certificate  may 
be  filed  and  become  effective  after  suit  brought  concerning  the  claim.     Strepey 
v.  Stark,  7  Colo.  614,  5  Pac.  Ill ;   Butte  Consol.  Min.  Co.  v.  Barker,  35  Mont. 
327,  89  Pac.  302,  304,  90  Pac.  177. 

231  Johnson  v.  Young,  18  Colo.  625,  34  Pac.  173;   TONOPAH  &  S.  L.  MIN. 
CO.  v.  TONOPAH  MIN.  CO.  OF  NEVADA  (C.  C.)  125  Fed.  389. 

282  DUNCAN  v.  FULTON,  15  Colo.  App.  140,  61  Pac.  244. 


224  LOCATION   OF  LODE   CLAIMS.  (Ch.  12 

of  the  original  locator  in  the  amended  certificate.  So,  if  one  locator 
may  abandon  his  interest  to  his  co-owners,  it  would  seem  to  be  proper 
to  omit  him  in  the  amended  certificate ; 238  but  the  mere  fact  that  he 
is  not  named  in  the  second  certificate  is  not  proof  of  abandonment23* 
To  save  any  question,  a  deed  should  be  obtained  from  him,  or  his  in- 
terest forfeited  under  the  forfeiture  to  co-owner  statute.235  The  taking 
in  of  a  new  locator  without  the  omission  of  any  of  the  old  may  well 
be  regarded  as  estopping  the  old  from  denying  an  interest  to  exist  in 
the  new.  In  any  event,  the  fact  that  a  second  or  amended  notice  or 
certificate  of  location  of  a  mining  claim  contains  names  other  than  those 
set  forth  in  the  original  cannot  be  taken  advantage  of  by  the  other  par- 
ties ;  but  as  to  the  persons  whose  names  appear  therein  for  the  first  time 
it  may  be  treated  as  an  original  notice  or  certificate,  and  as  a  supple- 
mental or  amended  notice  or  certificate  as  to  those  whose  names  appear 
on  both.238 

233  see  Strang  v.  Ryan,  46  Cal.  S3. 

as*  Thompson  v.  Spray,  72  Cal.  528,  14  Pac.  182;  Doe  v.  Waterloo  Min. 
Co.,  70  Fed.  435.  See  Weill  v.  Lucerne  Min.  Co.,  11  Nev.  200. 

238  Query  whether  a  relocation  would  answer.  See  Van  Valkenburg  y. 
Huff,  1  Nev.  142 ;  and  see  §  96,  infra. 

236TONOPAH  &  S.  L.  MIN.  GO.  v.  TONOPAH  MIN.  CO.  OF  NEVADA 
(C.  C.)  125  Fed.  389;  Thompson  v.  Spray,  72  Cal.  528,  14  Pac.  182.  See 
Gleeson  v.  Martin  White  Min.  Co.,  13  Nev.  442. 


§58)  LOCATION   OF  MILL  SITES.  225 

CHAPTER  XIII. 

THE  LOCATION  OF  MILL  SITES. 

58.  The  Two  Kinds  of  Mill  Sites. 

59.  Mill  Sites  Located  by  the  Proprietor  of  a  Vein  or  Lode. 
59a.          Use  Necessary  to  Hold  Such  Mill  Sites. 

60.  Mill  Sites  Claimed  by  Mills. 

61.  The  Acts  of  Location  of  Mill  Sites. 

THE  TWO  KINDS  OF  MILL  SITES. 

0 

58.  Nonmineral  unappropriated  public  land  of  the  United  States  may 
be  acquired  as  a  mill  site  (1)  where  it  is  not  contiguous  tot 
the  vein  or  lode  with  •which  the  claimant  wants  to  use  it,  and 
(2)  where,  without  owning  a  mine  in  connection  therewith, 
the  claimant  has  put  a  quartz  mill  or  reduction  works  on  the 
site. 

By  section  2337,  Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901,  p.  1436), 
mill  sites  may  be  acquired  in  two  ways :  (1)  "Where  nonmineral  land 
not  contiguous  to  the  vein  or  lode  is  used  or  occupied  by  the  proprietor 
of  such  vein  or  lode  for  mining  or  milling  purposes" ;  (2)  where,  with- 
out owning  a  mine  in  connection  therewith,  the  claimant  has  put  a 
quartz  mill  or  reduction  works  on  the  site.  A  mill  site  acquired  in  the 
second  way  is  both  technically  and  actually  a  mill  site ;  but  one  acquired 
in  the  first  way  may  be  devoted  to  nonmilling  purposes,  and  so  may  be 
called  a  mill  site  only  because  that  is  the  name  given  to  it  in  the  statute. 
Mill  sites  acquired  in  these  two  ways  must  be  nonmineral,1  must  not 
exceed  five  acres,  and  must  be  located  in  the  manner  required  by  the 
local  statutes. 

When  it  is  said  that  the  land  must  be  nonmineral,  that  means  that 
an  affirmative  answer  must  be  given  to  the  question:  "Has  the  land 
greater  value  for  mill  purposes,  or  for  surface  use  in  connection  with  a 
mining  claim,  than  it  has  as  mineral  land  ?"  2  As  between  a  prior  mill 
site  claimant  and  a  subsequent  lode  claimant,  the  mill  site  claimant  will 
be  given  the  benefit  of  the  doubt  as  to  mineral  values,  if  he  acted  bona 
fide,  and  the  l6de  claimant  will  be  defeated  if  he  does  not  show  that  the 
land  will  pay  to  work.8  A  bona  fide  prior  location  of  the  land  for  agri- 

i  Cleary  v.  Skiffich,  28  Colo.  362,  65  Pac.  59,  89  Am.  St.  Rep.  207. 

* Id.     Compare  Tinkham  v.  McCaffrey,  13  Land  Dec.  Dep.  Int.  517. 

»  CLEART  v.  SKIFFICH,  28  Colo.  362,  65  Pac.  59,  89  Am.  St  Rep.  207. 
If,  as  seems  true,  this  case  stands  for  the  proposition  that  a  mill  site  located 
in  good  faith  as  nonmineral  land  is  valid,  even  though  before  application  for 
COST.MIN.L..— 15 


226  LOCATION   OF   MILL   SITES.  (Ch.  13 

cultural  purposes  will  defeat  the  mill  site ;  *  while,  of  course,  a  prior 
mill  site  location,  if  it  conforms  to  the  statutory  requirements,  will  de- 
feat an  agricultural  entry  of  the  land. 

MILL  SITES  LOCATED  BY  THE  PROPRIETOR  OF  A  VEIN  OR 

LODE. 

59.  To  acquire  a  mill  site  for  use  with  a  lode  to  which  it  is  not  con- 
tiguous, any  mining  use  to  which  the  land  is  bona  fide  put 
will  justify  the  mill  site. 

The  requirement  that  the  land  acquired  as  a  mill  site  by  the  proprie- 
tor of  a  vein  must  not  be  contiguous  to  the  vein  is  intended  to  prevent 
any  increase  in  the  vein-containing  area  of  a  mining  claim  on  the  pre- 
tense that  it  is  wanted  as  a  mill  site  for  those  legitimate  mining  pur- 
poses for  which  the  law  allows  land  so  acquired  to  be  used.  While  the 
land  department  formerly  held  that  mill  sites  might  abut  upon  the  side 
lines  of  the  claim, 6  and  in  cases  where  it  was  clear  that  the  vein  de- 
parted through  the  side  lines  of  the  claim,  and  that  the  land  abutting 
the  end  lines  was  nonmineral,  the  latter  land  might  be  selected  as  the 
mill  site,6  the  presumption  was  against  such  a  mill  site's  validity,7  and 
the  department  has  finally  decided  against  the  validity  of  mill  sites 
adjacent  to  the  lode  claims  with  which  they  are  to  be  used.  The  final 
ruling  applied  the  old  doctrine  to  mill  sites  made  and  perfected  prior 
to  January  1,  1904,  where  mill  site  patents  were  applied  for  and  either 
carried  to  entry  before  July  1,  1906,  or  without  fault  of  the  applicant 
prevented  from  being  carried  to  entry  before  that  date,  while  it  makes 
the  new  construction  apply  to  all  other  mill  sites.* 

The  mining  purposes  which  will  be  accepted  as  the  equivalent  of 
milling  purposes  to  sustain  a  mill  site  located  by  the  proprietor  of 

patent,  it  is  shown  clearly  to  contain  the  apex  of  a  very  valuable  reim,  it  can- 
not be  supported  beyond  the  point  stated  in  the  text.  See  1  Lindley  on  Mines 
(2d  Ed.)  §  525.  Where  land  was  being  graded  for  a  mill  site,  but  the  «ccupaHts 
had  not  complied  with  any  of  the  requirements  of  the  federal  act  for  acquir- 
ing title  thereto,  the  occupants  were  held  not  to  be  entitled  to  gold  found  by 
others  beyond  the  limits  of  the'  graded  space.  BURNS  v.  CLARK,  133  Gal. 
634,  66  Pac.  12,  85  Am.  St.  Rep.  233. 

*  Hamburg  Mining  Co.  v.  Stephenson,  17  Nev.  450,  30  Pac.  1088 ;    Adams  v. 
Simmons,  16  Land  Dec.  Dep.  Int.  181. 

B  In  re  Freeman,  7  Copp's  L.  O.  4. 

e  National  Mining  &  Exploration  Co.,  7  Copp's  L.  O.  179 ;  Im  re  L«ag,  9 
Copp's  L.  O.  188. 

i  Id.  See  Mabel  Lode,  26  Land  Dec.  Dep.  Int.  675 ;  Paul  Jones  Lede,  31 
Land  Dec.  Dep.  Int.  359. 

*  Brick  Pomeroy  Mill  Site,  34  Land  Dec.  Dep.  Int.  320 ;   Alaska  Oopper  C», 
32  Land  Dec.  Dep.  Int.  128. 


§  59)  MILL   SITES   NOT   CONTIGUOUS   TO   A   VEIN.  227 

a  vein  or  lode  as  such  are  pretty  well  settled.  Any  mining  use  to  which 
it  is  bona  fide  put  would  comply  with  the  statute,8  and  hence  it  may  be 
used  for  the  erection  of  miners'  bunk  houses  and  boarding  houses  and 
for  ore  houses,9  for  pumping  works  to  get  water  to  the  mining  claim,10 
for  a  dumping  place  for  waste  rock  from  the  claim,  etc.  It  has,  how- 
ever, been  held  by  the  land  department  that  land  cannot  be  located  as 
a  mill  site  simply  to  get  the  timber  on  it  to  use  in  the  mine.11  It  would 
seem  unquestionable  that,  where  the  ground  is  located  by  the  proprie- 
tor of  a  lode,  its  use  as  a  dumping  place  for  waste  rock  thrown  away  in 
excavating  and  sorting  the  ore  is  a  proper  mill  site  use. 

It  has  been  supposed  by  some  that  there  is  nothing  to  prevent  one 
who  owns  several  lode  claims  from  acquiring  a  separate  mill  site  for 
each  claim  so  long  as  the  ground  acquired  is  actually  used  for  the  stat- 
utory purposes  in  connection  with  the  lode  for  which  it  was  located  ;13 
but  the  land  department  has  decided  that,  where  a  group  of  contigu- 
ous lode  claims  are  held  and  worked  under  a  common  ownership,  only 
a  reasonable  number  of  mill  site  locations  can  be  made  for  use  there- 
with.13 The  department  says:  "Whilst  no  fixed  rule  can  well  be  es- 
tablished, it  seems  plain  that  ordinarily  one  mill  site  affords  abundant 
facility  for  the  promotion  of  mining  operations  upon  a  single  body  of 
lode  claims."  14 

s  SILVER  PEAK  MINES  v.  VALCALDA  (C.  C.)  79  Fed.  886 ;  VALCALDA 
v.  SILVER  PEAK  MINES,  86  Fed.  90,  29  C.  C.  A.  591 ;  HARTMAN  T.  SMITH, 
7  Mont.  19,  14  Pac.  648. 

»  Charles  Lennig,  5  Land  Dec.  Dep.  Int.  190.  See  Satisfaction  Extension 
Mill  Site,  14  Land  Dec.  Dep.  Int.  173.  But  see  Alaska  Copper  Co.  32  Land 
Dec.  Dep.  Int.  128,  where  it  was  held  that  "a  boarding  house,  store,  sawmill, 
and  wharf"  did  not  sufficiently  evidence  mining  or  milling  use  or  occupation, 
within  the  meaning  of  the  mill  site  statute.  So  far  as  the  report  shows,  how- 
ever, these  structures  were  not  used  in  connection  with  the  mining  claim  for 
mining  purposes.  If  they  were,  they  should  have  been  held  sufficient  to  sup- 
port the  mill  site.  See  VALCALDA  v.  SILVER  PEAK  MINES,  86  Fed.  90, 
29  C.  C.  A.  591. 

10  Sierra  Grande  Mining  Co.  v.  Crawford,  11  Land  Dec.  Dep.  Int.  338. 

11  Two  Sisters  Lode  &  Mill  Site,  7  Land  Dec.  Dep.  Int.  557.    But  see  Tartar 
v.  Spring  Creek  Water  &  Mining  Co.,  5  Cal.  395. 

12  See  1  Lindley  on  Mines  (2d  Ed.)  §  520. 

13  Alaska  Copper  Co.,  32  Land  Dec.  Dep.  Int.  128 ;    Hard  Cash  aad  Other 
Mill  Site  Claims,  34  Land  Dec.  Dep.  Int.  325. 

i*  Alaska  Copper  Co.,  32  Land  Dec.  Dep.  Int  130. 


228  LOCATION   OF  MILL   SITES.  (Ch.  13 


SAME-USE  NECESSARY  TO  HOLD  SUCH  MILL  SITES. 

59a.  A  mill  site  acquired  by  the  proprietor  of  a  lode  is  retained  by  its 
reasonable  use  in  good  faith  for  a  rniulTig  purpose  in  connec- 
tion with  the  mining  claim. 

With  reference  to  the  use  for  mining  purposes  necessary  to  hold  a 
mill  site  acquired  in  connection  with  a  lode,  the  following  language  of 
the  Montana  court  is  important:  "We  cannot  say,  under  this  statute, 
what  shall  be  the  extent  of  the  use — whether  much  or  little — or  the 
particular  character  of  the  use.  The  phrase  'mining  purposes'  is  very 
comprehensive,  and  may  include  any  reasonable  use  for  mining  pur- 
poses which  the  quartz  lode  mining  claim  may  require  for  its  proper 
working  and  development..  This  may  be  very  little,  or  it  may  be  a 
great  deal.  The  locator  of  the  quartz  lode  mining  claim  is  required  to 
do  only  $100  worth  of  work  each  year  until  he  obtains  a  patent  there- 
for. But  if  he  does  only  this  amount,  and  uses  the  mill  site  in  connec- 
tion therewith,  is  not  this  the  use  of  a  mill  site  for  mining  purposes  in 
connection  with  the  mine  ?  Who  shall  prescribe  what  shall  be  the  kind 
and  extent  of  the  use  under  this  statute,  so  long  as  it  is  used  in  good 
faith  in  connection  with  the  mining  claim  for  a  mining  purpose?"  1B 

15HARTMAN  v.  SMITH,  7  Mont  19,  28,  14  Pac.  648.  That  a  use  which 
would  justify  one  mill  site  may  be  inadequate  to  sustain  four  mill  sites,  and  so 
none  be  allowed,  was  held  in  Hard  Cash  and  Other  Mill  Site  Claims,  34  Land 
Dec.  Dep.  Int.  325.  In  that  case  the  land  department  said:  "The  statute  clear- 
ly contemplates  that  at  the  time  the  application  for  patent  is  made  the  land 
included  in  the  mill  site  claim  is  used  or  occupied  for  mining  or  milling  pur- 
poses. Some  step  in  or  directly  connected  with  the  process  of  mining  or  some 
feature  of  milling  must  be  performed  upon,  or  some  recognized  agency  of  oper- 
ative mining  or  milling  must  occupy,  the  mill  site  at  the  time  application  for 
patent  is  filed.  Alaska  Copper  Company,  32  Land  Dec.  Dep.  Int.  128,  131.  So 
far  as  the  record  in  this  case  shows,  aside  from  the  digging  of  three  wells, 
nothing  has  been  done  on  the  mill  sites.  The  design  to  use  all  of  them  for  the 
purpose  of  a  reservoir  for  water,  and  the  building  of  a  reduction  works,  is  not 
the  present  active  employment  of  any  mining  agency  upon  the  land  or  the  di- 
rect use  of  it  for  milling  purposes.  Neither  is  the  storing  of  ore  upon  each  mill 
site,  under  the  circumstances  of  this  case,  such  a  use  of  the  land  as  to  warrant 
the  entry  and  patent  of  the  four  mill  sites.  It  was  stated  in  the  Alaska  Cop- 
per Company  Case,  supra,  p.  130,  that  'whilst  no  fixed  rule  can  well  be  estab- 
lished, it  seems  plain  that  ordinarily  one  mill  site  affords  abundant  facility  for 
the  promotion  of  mining  operations  upon  a  single  body  of  lode  claims.'  It  fol- 
lows that,  if  more  than  one  mill  site  is  applied  for  in  connection  with  a  group 
of  lode  claims,  a  sufficient  and  satisfactory  reason  therefor  must  be  shown. 
The  storage  of  a  quantity  of  ore  upon  each  of  the  four  mill  sites  in  this  case, 
where  there  is  nothing  to  show  but  that  the  area  embraced  in  one  of  them 
would  be  ample  for  such  storage,  is  but  a  mere  colorable  use  of  the  mill  sites, 


§  60)  MILL   SITES   CLAIMED   BY   MILLS.  229 

And  as  showing  what  is  an  actual  possession  and  use  of  a  mill  site, 
justifying  ejectment  because  of  ouster,  the  following  language  of  the 
United  States  Circuit  Court  of  Appeals,  Ninth  Circuit,  may  be  quoted : 
"It  would  seem  that  a  tract  of  five  acres  claimed  for  a  mill  site,  as  this 
was,  may  in  general  be  said  to  be  in  the  possession  of  the  locator  when 
its  corners  are  marked  with  painted  posts,  as  is  the  custom  and  rule  in 
locating  such  mill  sites,  and  as  required  by  the  regulations  of  the  gen- 
eral land  office.  In  a  mining  country  the  presence  of  the  boundary 
posts  is  as  significant  of  occupation  as  an  inclosure  would  be  of 
agricultural  lands.  In  the  present  case  there  were,  in  addition  to  the 
boundary  posts,  the  house,  the  stable,  and  the  springs,  together  with 
the  graded  wagon  road  leading  from  the  mill  site  to  the  mines  of  the 
plaintiff,  all  indicating  a  present  and  continuous  use.  *  *  *  Fail- 
ure to  use  a  mill  site  for  the  purposes  for  which  it  is  located  may,  in- 
deed, become  evidence  of  abandonment ;  but  there  was  no  evidence,  so 
far  as  the  record  goes,  tending  to  show  that  the  locator  had  failed  or 
ceased  to  use  the  property  for  the  purposes  for  which  it  was  claim- 
ed." 16 

Because  lode  claims  in  connection  with  which  mill  sites  are  acquired 
may  be  patented  before  the  mill  sites  are,f  it  must  not  be  supposed 
that  the  patented  lode  claims  can  be  allowed  to  remain  idle  and  the  un- 
patented  mill  site  remain  valid.  Reasonable  use  of  the  mill  site  in 
good  faith  is  always  required. 

MILL  SITES  CLAIMED  BT  MILLS. 

60.    To  acquire  a  mill  site  apart  from  lode  ownership,  nothing  short 
of  a  mill  or  reduction  works  on  the  ground  will  serve. 

With  reference  to  those  mill  sites  acquired  because  quartz  mills  or 
reduction  works  are  placed  on  the  ground  located  for  a  mill  site,  it 
seems  clear  that  as  many  locations  may  be  made  as  there  are  mills  erect- 
ed. Nothing  short  of  mills  or  reduction  works  will  do,17  however,  and, 
while  both  a  water  right  and  a  mill  site  may  be  located  on  the  same 

which  does  not  satisfy  the  requirements  of  the  statute.  It  thus  appearing 
that  the  mill  site  claims  are  not  used  or  occupied  for  mining  or  milling  pur- 
poses in  connection  with  the  lode  claim  as  required  by  law,  the  entry  must 
be  canceled."  Hard  Cash  and  Other  Mill  Site  Claims,  34  Land  Dec.  Dep.  Int. 
325,  327,  328.  On  dumping  as  a  mining  use  to  hold  a  mill  site,  see  chapter 
XIV,  §  64,  infra. 

16  Valcalda  v.  Silver  Peak  Mines,  86  Fed.  90,  94,  95,  29  C.  C.  A.  591. 

f  See  chapter  XVIII,  §  100. 

IT  Le  Neve  Mill  Site,  9  Land  Dec.  Dep.  Int.  460;  Brodie  Gold  Reduction  Co., 
29  Land  Dec.  Dep.  Int.  143.  An  attempt  to  locate  and  hold  two  mill  sites  by 


230  LOCATION   OF   MILL   SITES.  (Ch.  13 

tract  of  land,18  still  to  hold  the  mill  site  it  is  not  enough  to  convey  the 
water  in  pipes  to  a  smelter  two  miles  away,19  or  to  a  mill  and  reduc- 
tion works  owned  by  claimant  on  adjoining  ground,20  or  to  put  on  the 
site  a  dam  and  pipes  to  carry  the  water  for  use  on  nearby  lodes.21 

THE  ACTS  OF  LOCATION  OF  MILL  SITES. 

61.  The  federal  statute  prescribes  no  method  of  location  of  mill  sites, 
and  the  local  rules  and  statutes  must  therefore  be  consulted. 
"Where  there  are  none  applicable  to  mill  sites  as  such,  the 
local  requirements  as  to  lode  locations  should  be  met,  except 
as  regards  discovery  and  discovery  -work. 

The  manner  of  locating  mill  sites  is  governed  in  some  states  by  stat- 
ute. The  federal  statute  is  silent  on  the  subject,  and  in  the  absence  of 
specific  local  legislation  as  to  mill  sites  the  requirements  as  to  lode  lo- 
cations should  be  fully  complied  with,22  except,  of  course,  that  a  dis- 
covery shaft  need  not  be  dug  or  other  discovery  excavation  made.  A 
notice  of  location  should  be  posted  on  the  ground,  the  tract  should  be 
marked  in  such  a  way  that  the  boundaries  may  readily  be  traced,  and  a 
location  certificate  or  declaratory  statement  should  be  recorded.  Wher- 
ever there  is  local  legislation  regulating  the  location  of  mill  sites  as 
such,  a  name  is  required  to  be  given  to  the  mill  site.  It  is  important, 
therefore,  to  give  the  mill  site  a  name.  The  mill  site  should  also  be 
described  by  reference  to  natural  objects  and  permament  monuments 
with  the  same  particularity  as  is  used  in  the  case  of  lode  claims.  The 
record  should  state  the  number  of  feet  or  acres  claimed,  and,  if  the 
mill  site  is  located  by  the  proprietor  of  a  lode,  the  record  should  give 
the  name  and  a  brief  description  of  the  claim  with  which  the  mill  site  is 
to  be  used,  or,  if  it  is  to  be  used  for  a  mill  by  one  who  does  not  own  a 
lode  in  connection  with  it,  the  name  of  the  mill  or  reduction  works  up- 
building one  mill  on  the  division  line  between  them  will  not  be  allowed.  Hec- 
la  Consol.  M.  Co.,  14  Land  Dec.  Dep.  Int.  11. 

is  Charles  Lennig,  5  Land  Dec.  Dep.  Int.  190.  That  the  water  right  be- 
comes appurtenant  to  the  mill  site,  and  not  to  the  claim  the  ores  of  which  are 
treated,  see  North  American  Exploration  Co.  v.  Adams,  104  Fed.  404,  45  C.  C. 
A.  185. 

i»  Charles  Lennig,  5  Land  Dec.  Dep.  Int.  190. 

20  Brodie  Gold  Reduction  Co.,  29  Land  Dec.  Dep.  Int.  143.    A  mill  site  can- 
not be  acquired  as  an  addition  to  an  existing  mill  site.   «Hecla  Oonsol.  M.  Co., 
12  Land  Dec.  Dep.  Int.  75. 

21  Le  Neve  Mill  Site,  9  Land  Dec.  Dep.  Int.  460.    This  would  seem,  however, 
to  be  a  perfectly  proper  mining  purpose  to  sustain  the  location  of  a  mill  site 
by  the  proprietor  of  a  lode.    See  Silver  Peak  Mines  v.  Valcalda  (C.  C.)  79  Fed. 
886. 

22  Fencing  is  not  required.     Silver  Peak  Mines  v.  Valcalda  (C.  C.)  79  Fed* 
886,  889. 


§  61)  ACTS   OF  LOCATION   OF   MILL   SITES.  231 

on  the  mill  site.  With  these  additions,  the  acts  of  location  are  just 
like  those  for  lode  claims,  except,  of  course,  that  no  discovery  shaft 
is  required.  The  building  of  the  mill  in  the  one  situation,  and  the  actu- 
al user  of  the  land  for  mining  or  milling  purposes  in  connection  with 
the  lode  in  the  other,  takes  the  place  of  the  discovery  shaft  and  the 
subsequent  annual  labor. 

A  mill  site  is  so  far  like  a  mining  claim  that  it  has  been  held  to  be 
within  the  phrase  "any  mining  claim  or  possession  held  under  existing 
laws,"  and  hence  to  be  excepted  from  a  town  site  patent."  23 

23  HARTMAN  v.  SMITH,  7  Mont.  19,  14  Pac.  648.  Compare  language  in 
Cteary  y.  Skifficn,  28  'Colo.  362,  65  Pac.  59,  89  Am.  St.  Rep.  207. 


232  LOCATION   OF  TUNNEL  SITES.  (Ch.  14: 


CHAPTER  XIV. 

THH  LOCATION  OF  TUNNEL  SITES  AND  OF  BLIND  LODES  OUT  BY 

TUNNELS. 

62.  The  Location  of  Tunnel  Sites. 

»   63.  The  Nature  of  Tunnel  Sites. 

64.  Dumping  Ground  for  Tunnel  Sites. 

65,  66.  The  Location  of  Blind  Veins. 

67.  Rights  of  Way  through  Prior  Claims. 

68.  Tunnels  and  Annual  Labor. 


THE  LOCATION  OF  TUNNEL  SITES. 

62.  By  the  federal  statute  the  tunnel  site  owner  acquires  the  right  to 
"all  veins  or  lodes  •within  three  thousand  feet  from  the  face 
of  such  tunnel,  on  the  line  thereof,  not  previously  known  te 
exist,  discovered  in  such  tunnel."  While  that  statute  does 
not  prescribe  the  method  of  locating  tunnel  sites  for  the  dis- 
covery of  such  "blind  veins,"  the  land  department  has  a  rule 
which  prescribes  the  posting  and  recording  of  notices  and 
the  marking  of  boundary  lines,  and  that  rule  should  be  com- 
plied with. 

By  the  "face"  of  the  tunnel  is  meant  the  first  working  face  when 
the  tunnel  enters  cover,  and  by  the  "line"  of  the  tunnel 
seems  to  be  meant  the  space  bounded  by  1,5OO  feet  on  either 
side  of  the  bore  of  the  tunnel,  projected  3,OOO  feet  in  from 
the  face  of  the  tunnel;  but,  because  the  land  department, 
early  denned  the  "line"  of  the  tunnel  to  mean  the  bore  of  the 
..  tunnel,  a  prudent  locator  of  a  tunnel  site  will  mark  on  the* 
surface  both  the  projected  bore  of  the  tunnel  and  the  larger 
area  now  seemingly  known  as  the  line  of  the  tunnel. 

The  act  of  Congress  provides  for  the  acquisition  of  tunnel  sites 
for  the  discovery  and  location  of  veins  not  previously  known  to  ex- 
ist, but  found  on  the  line  of  the  tunnel  within  3,000  feet  from  its 
face;1  but  the  act  does  not  prescribe  the  method  of  locating  such 
tunnel  sites.  Acting  under  section  2478,  Rev.  St.  U.  S.  (U.  S.  Comp. 
St.  1901,  p.  1586),  however,  the  land  office  has  made  the  rule  that 
the  tunnel  locators,  as  soon  as  their  tunnel  actually  enters  cover, 
shall  "give  proper  notice  of  their  tunnel  location  by  erecting  a  sub- 
stantial post,  board,  or  monument  at  the  face  or  point  of  commence- 
ment thereof,  upon  which  should  be  posted  a  good  and  sufficient  no- 
tice, giving  the  names  of  the  parties  or  company  claiming  the  tun- 

i  Rev.  St.  U.  S.  §  2323  (U.  S.  Comp.  St.  1901,  p.  1426). 


§  62)  LOCATION   OP  TUNNEL   SITES.  283 

nel  right,  the  actual  or  proposed  course  or  direction  of  the  tunnel,  the 
height  and  width  thereof,  and  the  course  or  distance  from  such  face 
or  point  of  commencement  to  some  permanent  well-known  objects 
in  the  vicinity,  by  which  to  fix  and  determine  the  locus  in  manner 
heretofore  set  forth  applicable  to  location  of  veins  or  lodes ;  and  at  the 
time  of  posting  such  notice  they  shall,  in  order  that  miners  or  pros- 
pectors may  be  enabled  to  determine  whether  or  not  they  are  within 
the  lines  of  the  tunnel,  establish  the  boundary  lines  thereof  by  stakes 
or  monuments  placed  along  such  lines  at  proper  intervals,  to  the  ter- 
minus of  the  3,000  feet  from  the  face  or  point  of  commencement  of 
the  tunnel ;  and  the  lines  so  marked  will  define  and  govern  as  to  spe- 
cific boundaries  within  which  prospecting  for  lodes  not  previously 
known  to  exist  is  prohibited  while  work  on  the  tunnel  is  being  pros- 
ecuted, with  reasonable  diligence."  2  The  land  office  also  requires  that 
at  the  time  of  posting  notice  and  marking  the  lines  "a  full  and  correct 
copy  of  such  notice  of  location  defining  the  tunnel  claim  must  be 
filed  for  record  with  the  mining  recorder  of  the  district,  to  which  no- 
tice must  be  attached  the  sworn  statement  or  declaration  of  the  own- 
ers, claimants,  or  projectors  of  such  tunnel,  setting  forth  the  facts  in 
the  case,  stating  the  amount  expended  by  themselves  and  their  pred- 
ecessors in  interest  in  prosecuting  work  thereon,  the  extent  of  the 
work  performed,  and  that  it  is  bona  fide  their  intention  to  prosecute 
work  on  the  tunnel  so  located  and  described  with  reasonable  diligence 
for  the  development  of  a  vein  or  lode,  or  for  the  discovery  of  mines 
or  both  as  the  case  may  be."3 

In  the  foregoing  discussion  no  mention  has  been  made  of  state 
provisions,  because  they  are  all  covered  by  the  land  office  require- 
ments. For  instance,  the  Colorado  statute  provides  that,  "if  any  per- 
son or  persons  shall  locate  a  tunnel  claim  for  the  purpose  of  discovery, 
he  shall  record  the  same,  specifying  the  place  of  commencement  and 
termination  thereof,  with  the  names  of  the  parties  interested  therein."  * 
But,  as  we  have  just  seen,  that  and  more  is  required  by  the  land  depart- 
ment.5 

2  Land  Office  Regulations,  rule  No.  17. 

s  Land  Office  Regulations,  rule  No.  18. 

*  Mills'  Ann.  St.  Colo.  §  3140.. 

«  In  CREEDE  &  C.  C.  M1N.  &  MILL.  CO.  v.  UINTA  TUNNEL  MIN.  & 
TRANSP.  CO.,  196  U.  S.  337,  355,  25  Sup.  Ct.  266,  49  L.  Ed.  501,  there  is  the 
following  dictum :  "Nothing  is  said  in  section  2323  as  to  what  must  be  done 
to  secure  a  tunnel  right.  That  is  left  to  the  miners'  customs  or  the  state  stat- 
utes, and  the  statutes  of  Colorado  provide  for  a  location  and  the  filing  of  a 
certificate  of  location."  The  land  office  rules  were  overlooked  by  the  court, 
but  they  are  none  the  less  to  be  complied  with.  See  1  Lindley  on  Mines  (2d 
Ed.)  §  472. 


234  LOCATION   OF   TUNNEL   BITES.  (Ch.  14 

The  Face  of  the  Tunnel. 

The  face  of  the  tunnel  has  been  defined  by  the  land  department  as 
follows:  "The  term  'face/  as  used  in  said  section,  is  construed  and 
held  to  mean  the  first  working  face  formed  in  the  tunnel,  and  to  sig- 
nify the  point  at  which  the  tunnel  actually  enters  cover."  *  That 
seems  sound  doctrine. 

The  Line  of  the  Tunnel. 

The  line  of  the  tunnel  has  been  a  matter  of  controversy.  The 
tunnel  locator  is  given  the  right  of  possession  of  all  "blind  veins" 
(that  is,  veins  which  do  not  outcrop)7  within  3,000  feet  of  the  face 
of  the  -tunnel  "on  the  line  thereof,"  and  the  subsequent  location  by 
others  of  blind  veins  "on  the  line  of  such  tunnel"  is  declared  to  be  in- 
valid.8 The  land  office  rules  also  require  "the  boundary  lines"  of  the 
tunnel  to  be  established;  and  the  question  is:  What  is  "the  line  of 
the  tunnel,"  and  what  are  these  "boundary  lines"  ? 

In  Corning  Tunnel  Co.  v.  Pell9  the  Colorado  Supreme  Court  re- 
fused to  hold  that  "the  line  of  the  tunnel"  meant  a  space  3,000  feet 
into  the  mountain  by  1,500  feet  wide,  but  instead  declared  that  in 
the  federal  statutory  phrase  "line  of  the  tunnel"  the  word  "line" 
"designated  a  width  marked  by  the  exterior  lines  or  sides  of  the  tun- 
nel."10 The  reason  why  the  court  took  this  narrow  view  was  that, 
under  the  view  that  the  line  of  the  tunnel  embraced  1,500  by  3,000 
feet,11  "the  tunnel  site  would  withdraw  from  the  explorations  of  pros- 
pectors over  100  acres  of  mineral  lands.  A  very  limited  number  of 
such  locations  would  cover  and  monopolize  in  most  cases  an  entire 
mining  district;  giving  to  a  few  tunnel  owners  all  its  mines,  not 
upon  the  condition  of  discovery  and  development,  but  upon  the  easy 
condition  of  commencement  of  work  on  the  tunnel,  and  its  prosecu- 
tion with  reasonable  diligence."  12 

«  Land  Office  Regulations,  rule  No.  16. 

7  Larkin  v.  Upton,  144  U.  S.  19,  23,  12  Sup.  Ct.  614,  36  L.  Ed.  330 ;  Enter- 
prise Min.  Co.  v.  Rico- Aspen  Consol.  Min.  Co.,  167  U.  S.  108,  113,  17  Sup.  Ot 
762,  42  L.  Ed.  96. 

s  Rev.  St.  U.  S.  §  2323  (U.  S.  Comp.  St.  1901,  p.  1426).  That  means  invalid 
as  to  blind  veins  and  as  against  the  tunnel  site  owner. 

»4  Colo.  507. 

10  See,  also,  Hope  Min.  Co.  v.  Brown,  7  Mont.  550,  557,  19  Pac.  218,  11  Mont. 
370,  379,  28  Pac.  732. 

11  This  was  estimated  1,500  by  3,000  feet  on  the  erroneous  idea  that  the 
blind  lode  could  be  followed  only  750  feet  on  each  side  of  the  center  of  the 
bore  of  the  tunnel.    As  it  is  established  that  the  tunnel  owner  may  take  the 
whole  1,500  feet  of  the  blind  vein  on  one  side  only  of  the  tunnel,  and  it  is  un- 
certain on  which  side  he  will  elect  to  take  It,  the  real  figures  are  3,000  feet 
by  3,000  feet. 

12  Corning  Tunnel  Co.  v.  Pell,  4  Colo.  511. 


g  62)  LOCATION   OF   TUNNEL   SITES.  235 

This  construction  placed  upon  the  phrase  by  the  Colorado  court  in 
1878  prevailed  until  1897,  when  the  Supreme  Court  of  the  United 
States,  in  the  cases  of  Enterprise  Min.  Co.  v.  Rico-Aspen  Consol. 
Min.  Co.15  and  Campbell  v.  Ellet,14  adopted  the  broad  meaning  of  the 
words.  In  Enterprise  Min.  Co.  v. '  Rico- Aspen  Consol.  Min.  Co.,  the 
court  said :  "We  hold,  therefore,  that  the  right  to  a  vein  discovered  in 
the  tunnel  dates  by  relation  back  to  the  time  of  the  location  of  the 
tunnel  site,  and  also  that  the  right  of  locating  the  claim  to  the  vein 
arises  upon  its  discovery  in  the  tunnel,  and  may  be  exercised  by  locat- 
ing that  claim  the  full  length  of  1,500  feet  on  either  side,  as  the  lo- 
cator may  desire."  1S 

A  location,  therefore,  is  on  the  line  of  the  tunnel,  so  as  to  make 
it  invalid  as  against  a  previous  tunnel  site,  where  the  location  is 
above  the  plane  bounded  by  1,500  feet  on  either  side  of  the  projected 
bore  of  the  tunnel  and  within  3,000  feet  from  the  face  of  the  tunnel 
on  the  projected  extension  thereof.* 

The  Lines  of  the  Tunnel. 

What,  then,  are  "the  lines  of  the  tunnel/'  within  the  meaning  of  the 
land  office  rules?  They  would  seem  to  be  the  exterior  surface  mark- 
ings to  represent  the  plane  within  which  prospecting  for  blind  lodes 
is  by  statute  made  ineffective  as  against  the  tunnel  claimant.  They 
are  the  warnings  to  the  prospector  that  he  locates  at  his  peril,  be- 
cause he  is  subject  to  the  tunnel  site  owner's  rights.  But  since  the 
markings  are  called  for  only  by  the  land  department,  and  since  the 
land  department  early  denned  the  line  of  the  tunnel  in  the  way  the 
Colorado  court  interpreted  it,16  the  custom  has  been  to  mark  on  the 
surface,  by  parallel  lines  showing  its  width,  nothing  but  the  projected 
bore  of  the  tunnel.17  Since  the  decision  in  Enterprise  Min.  Co.  v. 
Rico-Aspen  Consol.  Min.  Co.18  it  would  seem  as  if  that  is  no  longer 
a  permissible  interpretation  of  the  land  department  regulations,  and 
as  if  the  area  within  which  prospecting  for  blind  lodes  may  not  be 
carried  on  under  the  statute  must  also  be  marked.  The  land  depart- 
ment rule  states  that  the  boundary  lines  of  the  tunnel,  marked  at  prop- 
is  167  U.  S.  108,  17  Sup.  Ct.  762,  42  L.  Ed.  96. 

i*  167  U.  S.  116,  17  Sup.  Ct.  765,  42  L.  Ed.  101. 

IB  ENTERPRISE  MINING  CO.  v.  RICO-ASPEN  CONSOL.  MIN.  CO.,  167 
U.  S.  108,  113,  17  Sup.  Ct.  762,  42  L.  Ed.  96. 

*  See  Hope  Min.  Co.  v.  Brown,  11  Mont.  370,  28  Pac.  732;  Eltet  v.  Camp- 
bell, 18  Oolo.  510,  33  Pac.  521. 

i6  in  re  David  Hunter,  5  Copp's  L.  O.  130;  In  re  John  Hunter,  Copp's  Min. 
Lands,  239 ;  In  re  J.  B.  Chaffee,  Copp's  Min.  Lands,  119. 

IT  1  Lindley  on  Mines  (2d  Ed.)  §  475. 

i«  167  U.  S.  108,  17  Sup.  Ct.  762,  42  L,  Ed.  96. 


236  LOCATION   OF  TUNNEL  SITES.  (Cll.  14 

er  intervals  by  stakes  or  monuments,  "will  define  and  govern  as  to 
the  specific  boundaries  within  which  prospecting  for  lodes  not  previ- 
ously known  to  exist  is  prohibited  while  work  on  the  tunnel  is  being 
prosecuted  with  reasonable  diligence."  19 

It  may,  of  course,  be  contended  that  the  lines  of  the  tunnel  are  so 
marked  by  the  marking  of  the  projected  tunnel  bore,  since  it  is  easy 
to  ascertain  from  such  marking  the  area  affected  by  the  tunnel,  and  the 
federal  decisions  in  regard  to  placers  seem  to  justify  the  contention;20 
but  in  a  matter  of  this  kind,  where  a  survey  has  to  be  made  anyway, 
and  the  additional  marking  is  almost  as  readily  made  as  not,  the  fol- 
lowing advice  of  Mr.  Lindley  seems  eminently  sound :  "As  a  matter 
of  caution  the  line  and  width  of  the  projected  tunnel  bore,  as  well  as 
the  exterior  boundaries  of  the  parallelogram  [3,000  feet  square], 
should  be  marked  at  the  surface."  21  Until  the  "lines  of  the  tunnel," 
as  these  words  are  used. in  the  departmental  regulations,  receive  defini- 
tion", this  is  the  only  wise  course. 

Excessive  Tunnel  Site  .Locations. 

The  rule  about  excessive  locations  applies  to  tunnel  sites.  A  claim 
for  one  5,000  feet  in  length,  if  made  in  good  faith,  is  void  only  as 
to  the  excess  over  3,000  feet.22  Probably  an  attempted  second  tun- 
nel location,  made  at  the  end  of  the  first  3,000-foot  tunnel  location, 
would  be  wholly  void,  so  far  as  the  acquisition  of  any  inchoate  right 
to  blind  veins  is  concerned;23  but  there  seems  to  be  no  decision  on 
the  point.  The  question  is  whether  the  breast  of  the  old  tunnel  can 
be  the  face  of  the  new,  within  the  meaning  of  the  federal  statute. 

THE  NATURE  OF  TUNNEL  SITES. 

63.  A  tunnel  site  is  not  a  mining  claim,  and  cannot  be  patented.  It 
is  merely  a  means  for  the  discovery  and  location  of  blind 
veins,  and  an  inchoate  right  to  the  nnlocated  blind  veins  on 
the  line  of  the  tunnel  attaches  upon  the  location  of  the  tun- 
nel, and  is  lost  by  an  abandonment  of  the  tunnel  site,  evi- 
denced by  a  failure  to  prosecute  the  work  for  six  months  and 
in  other  ways. 

A  tunnel  or  tunnel  site  is  a  peculiar  thing.  It  is  strictly  a  means 
provided  by  statute  for  the  discovery  of  blind  veins  in  unlocated 

19  Land  Office  Rules,  rule  No.  17. 

20  McKINLEY  CREEK  MIN.  CO.  v.  ALASKA  UNITED  MIN.  CO.,  183  U. 
S.  563,  22  Sup.  Ct.  84,  46  L.  Ed.  331. 

21  1  Lindley  on  Mines  (2d  Ed.)  §  475. 

22  Glacier  Mountain  Silver  Min.  Co.  v.  Willis,  127  U.  S.  471,  8  Sup.  Ct.  1214, 
32  L.  Ed.  172. 

23  See  Morrison's  Mining  Rights  (13th  Ed.)  258. 


§  63)  NATURE   OP  TUNNEL   SITES.  237 

ground,24  and  the  means  is  made  attractive  to  miners  by  giving  to 
the  tunnel  owner,  upon  the  acquisition  of  the  tunnel  site,  an  inchoate 
right  to  such  blind  veins  as  the  bore  of  the  tunnel  will  cut,25  and  by 
letting  that  inchoate  right  ripen  into  the  full  right  when  the  veins 
actually  are  cut  and  appropriated.  While  the  tunnel  lines  must  be 
marked  on  the  surface  under  the  land  department  requirements,  the 
tunnel  owner  as  such  has  no  rights  on  the  surface.  Moreover,  "a 
tunnel  is  not  a  mining  claim,  though  it  has  sometimes  been  inac- 
curately called  one,"  26  and  cannot  be  patented.  "As  the  claimant  of 
the  tunnel,  he  [the  tunnel  owner]  takes  no  ground  for  which  he  is 
called  upon  to  pay  and  is  entitled  to  no  patent."  27 

By  the  express  provisions  of  the  federal  statute  a  "failure  to  prose- 
cute work  on  the  tunnel  for  six  months  shall  be  considered  as  an  aban- 
donment of  the  right  to  all  undiscovered  veins  on  the  line  of  such  tun- 
nel." 28  To  retain  complete  tunnel  rights,  the  tunnel  owner  must,  by 
the  express  terms  of  the  statute,  prosecute  work  on  the  tunnel  with 
"reasonable  diligence."  If  he  does  not  do  so,  or  if  for  six  months 
he  fails  to  work  the  tunnel,  he  loses  his  right  to  blind  veins,  though 
he  may  continue  the  bore  of  the  tunnel  to  its  projected  end.29  Of 
course,  the  whole  tunnel  site  may  be  abandoned ;  but  that  is  a  matter 
dependent  on  intention. 

24CREEDE  &  C.  C.  MIN.  &  MILL.  CO.  v.  UINTA  TUNNEL  MTN.  & 
TRANSP.  CO.,  196  U.  S.  337,  25  Sup.  Ct.  266,  49  L.  Ed.  501.  The  tunnel  own- 
er's right  "reached  only  to  blind  veins,  as  they  may  be  called — veins  not 
known  to  exist,  and  not  discovered  from  the  surface  before  he  commenced  his 
tunnel."  ENTERPRISE  MIN.  CO.  v.  RICO-ASPEN  CONSDL.  MIN.  CO.,  167 
U.  S.  108,  113,  17  Sup.  Ct.  762,  42  L.  Ed.  96. 

25  See  Hope  Min.  Co.  v.  Brown,  11  Mont  370,  383,  28  Pac.  732. 

26  CREEDE  &  C.  C.  MIN.  &  MILL.  CO.  v.  UINTA  TUNNEL  MIN.  &  TRANSP. 
CO.,  196  U.  S.  337,  357,  25  Sup.  Ct.  266,  49  L.  Ed.  501.    For  a  case  where  it  was 
called  a  mining  claim,  see  Back  v.  Sierra  Nevada  Consol.  Min.  Co.,  2  Idaho, 
420,  17  Pac.  83. 

27  Creede  &  C.  C.  Min.  &  Mill.  Co.  v.  Uinta  Tunnel  Min.  &  Transp.  Co.,  196 
U.  S.  358,  25  Sup.  Ct.  266.  49  L.  Ed.  501. 

2*  Rev.  St.  U.  S.  §  2323  (U.  S.  Comp.  St.  1901,  p.  1426). 

29  FISSURE  MIN.  CO.  v.  OLD  SUSAN  MIN.  GO.,  22  Utah,  438,  63  Pac. 
587.  "Any  party  running  a  tunnel  would  probably  hold  the  tunnel  itself  (i.  e., 
the  bore  as  far  as  actually  run)  without  any  record  whatever.  This  is  done 
every  day  in  the  case  of  cross-cuts,  which  are  simply  tunnels  on  a  small  scale. 
But  t«  claim  any  rights  for  its  line  or  otherwise  under  the  act  of  Congress  it 
must  be  staked  and  recorded."  Morrison's  Mining  Rights  (13th  Ed.)  256. 


238  LOCATION   OF   TUNNEL   SITES.  (Ch.  14 


DUMPING   GROUND    FOR   TUNNEL    SITES. 

64.  A  reasonable  amount  of  surface  ground  around  the  moutli  of  the 
tunnel  is  always  claimed  for  dumping  purposes  by  the  tun- 
nel site  location  notice;  the  number  of  feet  claimed  and 
the  situation  of  the  ground  being  stated.  Wise  precaution 
dictates  that  the  dumping  ground  be  located  also  as  a  mill 
site. 

Ground  for  Dumping  Purposes. 

It  is  customary  in  tunnel  site  location  notices  to  claim  a  specified 
number  of  feet  of  ground  for  dumping  purposes.  In  a  Utah  case 
it  was  assumed  that  the  tunnel  site  owner  was  entitled  "to  a  space  of 
surface  ground  50  feet  on  each  side  of  the  mouth  of  the  tunnel  and 
100  feet  extending  in  front  thereof  for  dumping  purposes."  8*  And 
the  form  in  Morrison's  Mining  Rights  calls  for  a  tract  250  feet  square 
for  dumping  purposes.31  Unless  the  dumping  ground  may  be  re- 
garded as  a  mill  site,  there  is  no  express  statutory  authorization  for 
its  acquisition  by  the  tunnel  site  claimant.  The  very  nature  of  a  tun- 
nel site  calls,  however,  for  the  acquisition  of  a  reasonable  ampunt  of 
ground  around  the  face  of  the  tunnel  for  the  deposit  of  waste  rock, 
and  no  doubt  such  ground  may  be  acquired.  Prior  to  the  tunnel 
site  act  the  California  court  declared  that,  "when  a  place  "of  .deposit 
for  tailings  is  necessary  for  the  fair  working  of  a  mine,  there  can  be 
no  doubt  of  the  miner's  right  to  appropriate  such  ground  as  may  be 
reasonably  necessary  for  this  purpose,  provided  he  does  not  interfere 
with  pre-existing  rights.  His  intention,  however,  should  be  clearly 
manifested  by  outward  acts."  32 

Although  since  then  the  mill  site  acts  have  provided  a  method  for 
the  acquisition  of  dumping  ground  for  a  mining  location,  this  Cal- 

30  Fissure  Min.  Co.  v.  Old  Susan  Min.  Co.,  22  Utah,  438,  63  Pac.  587. 

si  Morrison's  Mining  Rights  (13th  Ed.)  252. 

32  Jones  v.  Jackson,  9  Cal.  237,  244;  Lincoln  T.  Rodgers,  1  Momt  217.  But 
see  Miser  v.  O'Shea,  37  Or.  231,  62  Pac.  491,  82  Am.  St.  Rep.  751.  Im  Hard 
Cash  and  Other  Mill  Site  Claims,  34  Land  Dec.  Dep.  Int.  325,  the  land  depart- 
ment said  that  under  the  circumstances  of  that  case  the  storing  »f  «re  •»  four 
mill  site  claims  would  not  sustain  any  on  an  application  to  patent  tke  f«ur,  be- 
cause, since  one  mill  site  was  enough  in  that  case,  the  use  as  to  all  f«ur  was 
"colorable."  The  department  is  not  to  be  understood,  however,  as  saying  that 
the  storage  of  ore  or  the  dumping  of  waste  rock  on  one  mill  site  claim  is  Hot 
a  mining  use  of  it.  In  Charles  Lennig,  5  Land  Dec.  Dep.  Int.  19t,  192,  the 
Secretary  of  the  Interior  said  that  if  the  proprietor  of  a  lode  should  use  a  mill 
site  "for  depositing  'tailings'  or  storing  ores  *  *  *  I  think  it  clear  tkat  he 
would  be  using  it  for  mining  or  milling  purposes."  As  to  ground  f*r  tailings, 
see  note  25,  chapter  XXVIII,  Infra. 


§§  65-66)  LOCATION    OF  BLIND   VEINS.  239 

ifornia  case's  doctrine  would  doubtless  apply  to  a  tunnel  site  prior  to 
the  discovery  of  a  lode  in  it,  unless  the  tunnel  site  location  would  sup- 
port a  mill  site  location.  The  safest  thing  for  a  tunnel  site  claimant 
to  do  to  acquire  dumping  ground  would  seem  to  be  to  claim  the  ground 
in  his  tunnel  site  location  notice  and  also  to  locate  the  ground  as  a 
dumping  "mill  site"  in  connection  with  the  lodes  to  be  discovered  in 
the  tunnel.  In  the  latter  case  the  cutting  of  a  single  blind  vein 
would  doubtless  make  it  clear  either  that  the  mill  site  always  had 
been  good,  because  used  for  mining  purposes  by  the  owner  of  a  lode 
whose  ownership  was  inchoate  at  the  time  of  the  location  of  the  mill 
site,  or  that  it  was  good  by  relation  from  the  moment  of  the  discovery 
of  the  blind  vein.  If  all  other  reasoning  failed,  the  dumping  ground 
could  be  upheld  as  necessarily  authorized  by  implication  by  the  tunnel 
site  act  itself." 


THE    LOCATION    OF    BLIND    VEINS. 

65.  The  tunnel  owner  who  discovers  a  blind  vein  which  he  is  entitled 

to  claim  may  make  a  surface  location  thereof;  but,  despite 
a  troublesome  dictum  in  a  recent  United  States  Supreme  Court 
opinion,  there  seems  to  be  no  necessity  for  him  to  make  one. 
Apparently  he  need  not  do  more  to  acquire  blind  veins  than  to 
post  at  the  mouth  of  the  tunnel  and  to  record  a  notice  suffi- 
ciently designating  the  extent  and  situs  of  the  vein  claimed. 
To  get  patent,  however,  a  surface  location  is  requisite. 

66.  Only  those  blind  veins  seem  to  be  acquired  which  are  cut  by  the 

bore  of  the  tunnel,  which  do  not  apex  in  ground  located  or  pat- 
ented prior  to  the  acquisition  of  the  tunnel  site,  and  which 
do  apex  within  the  space  1,5OO  feet  on  each  side  of  the  3,000- 
foot  projected  bore  of  the  tunnel. 

as  Compare  the  holding  that  a  dumping  right  is  an  "appurtenance"  «f  a  tun- 
nel right  because  "necessary  for  the  full  and  free  enjoyment  of  the  tunnel 
right."  Scheel  v.  Alhambra  Min.  Co.  (C.  C.)  79  Fed.  821.  Since  the  mining 
law  acts,  and  particularly  since  the  provision  for  the  acquisition  «f  dumping 
ground  under  the  mill  site  sections  of  those  acts,  it  seems  clear  that  a  mining 
locator  does  not  acquire  priority  for  dumping  purposes  by  depositing  tailings 
on  public  land.  In  a  proper  case  the  land  used  for  dumping  purposes  may  be 
located  by  others,  whose  rights  then  become  prior.  Miser  v.  O'Shea,  37  Or. 
231,  62  Pac.  491,  82  Am.  St.  Rep.  751.  Even  before  these  acts,  the  California 
court  stated  that  "the  place  of  deposit  must  be  claimed  as  such,  or  as  a  min- 
ing claim,  and  the  intention  of  the  claimant  must  be  manifested  by  outward 
acts."  Jones  v.  Jackson,  9  Cal.  237,  245.  By  "mining  claim"  the  California 
court  may  have  meant  a  mill  site.  Hartman  v.  Smith,  7  Mont.  19,  14  Pac.  648. 
While  the  Idaho  court,  in  holding  that  a  tunnel  site  is  a  mining  claim  within 
the  meaning  of  the  statute  about  adversing  (Back  v.  Sierra  Nevada  Consol. 
Min.  Co.,  2  Idaho,  420,  17  Pac.  83),  seems  to  have  gone  too  far  (CREEDE  & 
C.  C.  MIN.  &  MILL.  CO.  v.  UINTA  TUNNEL  MIN.  &  TRANSP.  CO.,  196  U.  S. 


240  LOCATION   OF  TUNNEL  SITES.  (Ch.  14 

The  federal  tunnel  statute  is  really  an  incongruous  part  of  the  act 
of  1872.  It  was  based  on  the  old  notion  that  the  lode  was  every- 
thing and  the  surface  only  a  necessary  incident,  and  it  clearly  contem- 
plated that,  as  the  tunnel  owner  would  not  need  any  surface  for  his 
workings,  since  he  would  mine  through  his  tunnel,  only  the  blind 
lodes  discovered  in  the  tunnel  should  be  acquired,  and  that  no  right  out- 
side the  blind  lodes  themselves  should  be  acquired,  except  the  right 
of  way  in  the  country  rock,  along  the  dip  or  along  the  rise  of  the  vein, 
needed  to  follow  and  work  the  vein  where  it  was  too  small  for  the 
owner  to  stay  within  it.  For  many  years  it  was  supposed,  and  the  case 
of  Campbell  v.  Ellet,34  decided  in  1897,  fully  sustained  that  supposi- 
tion, that  because  the  blind  veins  discovered  in  the  tunnel  were  the  only 
things  intended  to  be  given  to  the  tunnel  owner,  and  only  1,500  feet 
along  their  strike,  surface  locations  need  not  be  made  by  the  tun- 
nel owner.  "Indeed,"  the  Supreme  Court  of  the  United  States 
well  said  in  Campbell  v.  Ellet,  "the  conditions  surrounding  a  vein  or 
lode  discovered  in  a  tunnel  are  such  as  to  make  against  the  idea  or 
necessity  of  a  surface  location.  We  do  not  mean  to  say  that  there 
is  any  impropriety  in  such  a  location,  the  locator  marking  the  point 
of  discovery  on  the  surface  at  the  summit  of  a  line  drawn  perpendic- 
ularly from  the  place  of  discovery  in  the  tunnel  and  about  that  point 
locating  the  lines  of  his  claim  in  accordance  with  other  provisions  of 
the  statute.  *  *  *  But,  without  determining  what  would  be  the 
rights  acquired  under  a  surface  location  based  upon  a  discovery  in 
a  tunnel,  it  is  enough  to  hold,  following  the  plain  language  of  the  stat- 
ute, that  the  discovery  of  the  vein  in  the  tunnel,  worked  according  to 
the  provisions  of  the  statute,  gives  a  right  to  the  possession  of  the 
vein  to  the  same  length  as  if  discovered  from  the  surface,  and  that  a 
location  on  the  surface  is  not  essential  to  a  continuance  of  that  right. 
We  do  not  mean  to  hold  that  such  right  of  possession  can  be  main- 
tained without  compliance  with  the  provisions  of  the  local  statutes 
in  reference  to  the  record  of  the  claim,  or  without  posting  in  some 
suitable  place,  conveniently  near  to  the  place  of  discovery,  a  proper 
notice  of  the  extent  of  the  claim — in  other  words,  without  any  prac- 
tical location.  For  in  this  case  notice  was  posted  at  the  mouth  of 
the  tunnel,  and  no  more  suitable  place  can  be  suggested,  and  a  proper 
notice  was  put  on  record  in  the  office  named  in  the  statute."35 

337,  25  Sup.  Ct.  266,  49  L.  Ed.  501),  there  is  every  reason  to  believe  that  the 
tunnel  site  owner,  even  prior  to  the  discovery  of  a  blind  lode  in  his  tunnel,  is 
sufficiently  "the  proprietor"  of  a  vein  or  lode  to  be  entitled  to  locate  and  hold 
'a  mill  site.  Rev.  St.  U.  S.  §  2337  (U.  S.  Comp.  St  1901,  p.  1436). 

a*  167  U.  S.  116,  17  Sup.  Ct.  765,  42  L.  Ed.  101. 

35  CAMPBELL  v.  ELLET.  .167  U.  S.  116,  119,  120,  17  Sup.  Ct.  765,  42  L.  Ed. 
101. 


§g  65-66)  LOCATION   OF   BLIND   VEINS. 

Campbell  v.  Ellet  was  a  clear  recognition  that  a  blind  lode  discov- 
ered in  a  tunnel  was  given  as  such  to  the  tunnel  owner,  if  he  ap- 
propriated it  and  gave  sufficient  notice  thereof,  even  though  he  did 
not  make  a  surface  location.36  But  in  Creede  &  C.  C.  Min.  &  Mill. 
Co.  v.  Uinta  Tunnel  Min.  &  Transp.  Co.  the  same  judge  who  wrote  the 
opinion  in  Campbell  v.  Ellet,  and  without  referring  to  that  case, 
gave  utterance  to  the  following  dictum:  'The  owner  [of  the  tunnel] 
has  a  right  to  run  it  in  the  hope  of  rinding  a  mineral  vein.  When 
one  is  found,  he  is  called  upon  to  make  a  location  of  the  ground 
containing  that  vein,  and  thus  create  a  mining  claim,  the  protection 
of  which  may  require  adverse  proceedings." ST  This  dictum,  so 
at  variance  with  the  purpose  of  the  tunnel  act,  and  so  inex- 
plicably overlooking  the  previous  decision  of  the  court,  can- 
not be  regarded  as  law,  if  it  means  that  a  surface  location  must 
be  made.  The  tunnel  owner  must  locate  the  vein,  but  not  necessarily 
the  ground  containing  the  vein.  The  tunnel  owner,  who  has  discover- 
ed a  blind  vein,  may  be  "called  upon  to  make  a  location  of  the  ground 
containing  that  vein,  and  thus  create  a  mining  claim,"  without  being 
penalized  by  the  loss  of  that  vein  if  he  does  not  do  so,  and  the  dictum 
is  thus  not  necessarily  in  conflict  with  the  earlier  case.38  A  surface 
location  is  requisite,  however,  if  the  locator  wishes  a  patent. 

A  surface  location  is,  of  course,  essential  if  one  wishes  to  acquire 
title  to  veins  discovered  in  tunnels  not  located  and  run  in  accordance 

3«  The  unreasonableness  of  any  other  rule  is  well  set  forth  in  the  following 
quotation  from  the  opinion  of  the  Colorado  court:  "Little  encouragement  would 
the  act  give  if  the  discoverer  of  a  lode  in  a  tunnel  were  bound  also  to  find  the 
apex  and  course  of  such  vein,  uncover  the  same  from  the  surface,  erect  his 
location  shaft  thereon,  mark  the  boundaries  thereof,  and  record  his  certificate 
of  such  surface  location,  the  same  as  if  he  had  made  the  original  discovery 
from  the  surface.  The  location  of  a  lode  from  the  surface  is  always  attend- 
ed with  more  or  less  difliculty  and  uncertainty.  Mistakes  occur  in  the  loca- 
tion of  boundary  lines,  even  where  the  apex  and  course  of  the  vein  lie  com- 
paratively near  the  surface.  These  difficulties  and  uncertainties  are  liable  to 
be  greatly  increased  where  a  lode  is  discovered  by  means  of  a  tunnel  driven 
hundreds  and  thousands  of  feet  into  the  heart  of  a  great  mountain.  To  re- 
quire the  discoverer  of  a  lode  in  a  tunnel  to  prospect  for  the  vein  upon  the  sur- 
face, and  uncover  and  mark  its  boundaries  so  as  to  include  its  apex  and  course 
within  the  lines  of  the  surface  location,  would  be  to  require  a  work  of  super- 
erogation, for  no  surface  location  is  necessary  for  the  convenient  working  of 
a  lode  discovered  in  a  tunnel  location  already  made.  Such  requirement 
would  unnecessarily  burden  the  tunnel  locator  and  discoverer."  Ellet  v. 
Campbell,  18  Colo.  510,  33  Pac.  521,  524. 

ST  OREEDE  &  C.  C.  MIN.  &  MILL.  CO.  v.  UINTA  TUNNEL  MIN.  & 
TRANSP.  CO.,  196  U.  S.  337,  357,  358,  25  Sup.  Ct.  266,  49  L.  Ed.  501. 

38  Campbell  v.  Ellet,  167  U.  S.  116,  17  Sup.  Ct.  765,  42  L.  Ed.  101.     But  see 
Morrison's  Mining  Rights  (13th  Ed.)  253. 
COST.MIN.L.— 16 


242  LOCATION    OF   TUNNEL   SITES.  (Cll.  14: 

with  the  provisions  of  the  federal  statute  about  tunnel  sites ;  the  dis- 
covery in  the  tunnel  being  as  effectual  as  a  discovery  by  shaft  from  the 
surface.39  A  statutory  tunnel  owner  who  wishes  to  make  a  surface 
location  should  so  lay  out  his  surface  claim  as  to  have  some  part  of  it 
directly  above  the  point  of  discovery,  and  should  mark  that  point  on 
the  surface.40 

Blind  Veins  Apexing  Outside  of  the  Tunnel  Site  Parallelogram. 

The  tunnel  owner  does  not  necessarily  get  all  blind  veins  in  his 
tunnel  not  embraced  in  locations  made  prior  to  the  tunnel  site  loca- 
tion. He  gets  all  such  blind  veins  which  could  be  included  in  loca- 
tions made  within  the  line  of  the  tunnel  in  the  broad  sense  of  the 
word,  and  hence  gets  all  blind  veins  which  apex  in  that  area.  Mr. 
Lindley  seems  to  think  that  he  gets  veins  cut  by  the  tunnel  which 
apex  outside  that  area.41  There  seems  to  be  no  case  on  the  sub- 
ject; but  Mr.  Lindley's  view  would  appear  to  give  the  statute  a  far 
wider  application  than  its  framers  intended  and  to  be  unfair  to  pros- 
pectors. The  provisions  of  section  2323,  Rev.  St.  U.  S.  (U.  S.  Comp. 
St.  1901,  p.  1426),  should  be  construed  together  with  reference  to  the 
rights  of  locators  under  normal  conditions ;  and,  so  construed,  they  seem 
to  show  that  the  tunnel  owner  was  not  intended  to  get  blind  veins  apex- 
ing  outside  of  the  broadly  defined  line  of  the  tunnel.  He  gets,  more- 
over, only  veins  discovered  in  the  tunnel,42  and  the  blind  veins  which 
he  can  take  he  may  lose  by  abandonment,  or  forfeit  for  failure  to  give 
the  requisite  notice,  or  to  make  the  proper  record,43  or  to  work  an- 
nually. 

Those  veins  that  the  tunnel  owner  does  get  he  has  as  a  whole  for 
the  1,500  feet  of  their  strike,  and  may  work  both  up  to  their  apexes 
and  down  to  their  lowest  depth.  His  rights  on  the  raise  or  on  the 
dip  are  no  doubt  governed  by  end  line  bounding  planes  extended  as  in 
the  case  of  lode  locations  made  under  the  act  of  1866. 

39  BREWSTER  v.   SHOEMAKER,  28  Colo.   176,  63  Pac.  309,  53  L.  R.  A. 
793,  89  Am.  St.  Rep.  188. 

40  CAMPBELL  v.  ELLET,  167  U.  S.  116,  119,  17  Sup.  Ct.  765,  42  L.  Ed. 
101.     A  discovery  from  the  surface  in  addition  to  the  discovery  in  the  tun- 
nel is,  of  course,  not  essential  to  the  validity  of  the  surface  location,  if  in 
fact  it  includes   the  vein.     Rico-Aspen  Consol.  Min.   Co.  v.   Enterprise   Min. 
Co.  (C.  C.)  53  Fed.  321;    Ellet  v.  Campbell,  18  Colo.  510,  33  Pac.  521. 

41  1  Lindley  on  Mines  (2d  Ed.)  §  491.     Mr.  Shamel,  in  his  recent  book,  also 
takes  the  view  that,  wherever  the  vein  wanders  or  apexes,  it  belongs  to  the 
tunnel  owner  for  the  1,500  feet  of  its  length,  if  only  it  is  cut  in  the  tunnel 
within  3,000  feet  of  the  face  of  the  tunnel.     Shamel's  Mining,  Mineral  and 
Geological  Law,  253. 

42  Corning  Tunnel  Co.  v.  Pell,  4  Colo.  507;    Rev.  St.  U.   S.  §  2323  (U.  S, 
Comp.  St.  1901,  p.  1426). 

43  See  Campbell  v.  Ellet,  167  U.  S.  116,  17  Sup.  Ct.  765,  42  L.  Ed.  101. 


§  67)  BIGHTS   OF   WAY   THROUGH   PRIOR   CLAIMS.  243 


RIGHTS   OF  WAY  THROUGH  PRIOR   CLAIMS. 

67.  The  tunnel  site  owner  acquires  no  right  to  tunnel  through  claims 
located  prior  to  the  acquisition  of  the  tunnel  site,  but  may 
acquire  such  right  by  condemnation  proceedings  where  the 
local  statutes  permit. 

The  tunnel  owner  acquires  no  rights  as  against  prior  patented  and 
unpatented  mining  claims,  either  as  to  blind  veins  or  as  to  a  right 
of  way  through  the  claims.44  A  state  statute  attempting  to  confer  up- 
on a  tunnel  owner  the  right  to  drive  his  tunnel  through  prior  patented 
and  unpatented  mining  claims  has  been  held  unconstitutional,45 
though  it  has  since  been  argued  that  such  a  statute  is  "a  perfectly  law- 
ful exercise  of  the  power  granted  to  the  states  to  regulate  easements, 
under  Rev.  St.  U.  S.  §  2338  (U.  S.  Comp.  St.  1901,  p.  1436),  as  to 
all  locations  made  since  the  date  the  act  went  into  effect,  without  re- 
gard to  the  date  of  the  location  of  the  tunnel."46 

It  would  seem,  however,  as  if  section  2338,  Rev.  St.  U.  S.,  was 
not  intended  to  enable  the  states  to  relieve  tunnel  claimants  from  the 
necessity  of  condemning  rights  of  way  through  prior  mining  loca- 
tions, nor  to  deprive  mining  landowners  of  their  property  without 
just  compensation.47  Condemnation  proceedings  may  be  author- 
ized.f  Locations  are  not  prior,  however,  from  the  mere  fact 
that  the  acts  of  location  have  taken  place,  but  will  date  in  any  case 
only  from  discovery.48  Subsequent  locations,  even  if  they  have  gone 
to  patent,  must  yield  up  blind  veins  not  yet  cut  in  the  tunnel,  and 
must  permit  the  tunnel  to  go  through  their  ground  without  charge.4' 
The  failure  of  the  tunnel  owner  to  adverse  the  subsequent  locations 


44  CALHOUN  GOLD  MIN.  CO.  v.  AJAX  GOLD  MIN.  CO.,  182  U.  S.  499,  21 
Sup.  Ct.  885,  45  L.  Ed.  1200;    Richards  v.  Dower,  64  Cal.  62,  28  Pac.  113; 
Dower  v.  Richards,  73  Cal.  477,  15  Pac.  105;    Amador  Queen  Min.  Co.  v. 
De  Witt,  73  Cal.  482,  15  Pac.  74. 

45  Cone  v.  Roxanna  Co.,  2  Leg.  Adv.  359. 

46  Morrison's  Mining  Rights  (12th  Ed.)  235. 

47  BAILLIE  v.  LARSON  (C.  C.)  138  Fed.  177. 

t  Id.  Tanner  v.  Treasury  Tunnel,  Mining  &  Reduction  Co.,  35  Colo.  593, 
83  Pac.  464,  4  L.  R.  A.  (N.  S.)  106. 

48Uinta  Tunnel,  Min.  &  Transp.  Co.  v.  Ajax  Gold  Min.  Co.,  141  Fed. 
563,  73  C.  C.  A.  35;  CREEDE  &  C.  O.  MIN.  &  MILL.  CO.  v.  UINTA  TUN- 
NEL MIN.  &  TRANSP.  CO.,  196  U.  S.  337,  25  Sup.  'Ct  266,  49  L.  Ed.  501 

4»  ENTERPRISE  MIN.  CO.  v.  RICO-ASPEN  CONSOL.  MIN.  CO.,  167  U. 
S.  108,  17  Sup.  Ct.  762,  42  L.  Ed.  96 ;  CREEDE  &  C.  C.  MIN.  &  MILL.  CO. 
v.  UINTA  TUNNEL  MIN.  &  TRANSP.  CO.,  196  U.  S.  337,  25  Sup.  CL 
266,  49  L.  Ed.  501. 


244  LOCATION   OF   TUNNEL   SITES.  (Ch.  14 

does  not  prejudice  his  right  to  veins  not  yet  discovered  in  the  tun- 
nel at  the  time  of  such  failure.50 


TUNNELS  AND  ANNUAL  LABOR. 

68.    In  a  proper  case  work  on  the  statutory  tunnel  will  serve  for  an- 
nual labor. 

In  closing  this  discussion  of  tunnel  sites,  it  should  be  noted  that 
a  tunnel  may  be  so  planned  as  to  serve  the  purpose  of  a  tunnel  to 
secure  blind  lodes,  and  yet  the  work  on  it  count  as  annual  labor  on 
claims  which  it  is  so  run  as  to  cut  and  develop.51  It  follows,  of  course, 
that  the  tunnel  work  will  count  as  development  work  in  making  up 
the  amount  needed  to  patent  a  claim,  each  $500  of  labor  in  running 
the  tunnel  thus  enabling  the  tunnel  owner  to  go  to  patent  for  one  claim 
cut  or  to  be  cut  by  the  tunnel  and  benefited  by  said  labor.52 

50  ENTERPRISE  MIN.  CO.  v.  RICO-ASPEN  CONSOL.  MIN.  CO.,  16T 
U.  S.  108,  17.  Sup.  Ot  762,  49  L.  Ed.  96. 

si  Act  Feb.  11,  1875,  c.  41,  18  Stat.  315  (U.  S.  Comp.  St.  1901,  p.  1427), 
amendment  to  Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426).  See 
Hain  v.  Mattes,  34  Colo.  345,  83  Pac.  127 ;  Kirk  v.  Clark,  17  Land  Dec.  Dep. 
Int.  190. 

B  2  Zephyr  and  Other  Lode  Mining  Claims,  30  Land  Dec.  Dep.  Int.  510. 


§  69)  LOCATION   OF   PLACERS.  245 

CHAPTER   XV. 
THE  LOCATION  OF  PLACERS  AND  OP  LODES  WITHIN  PLACERS. 

69.  The  Location  of  Placers. 

70.  The  Discovery  Notice. 

71.  The  Discovery  Work. 

72.  The  Marking  of  the  Location  on  the  Ground. 

73.  The  Posting  of  the  Location  Notice. 

74.  Record. 

75-77.    Lodes   Within   Placers. 

THE  LOCATION  OF  PLACERS. 

69.  A  placer  is  a  mineral  deposit,  which  is  not  a  lode,  and  yet  may  be 
located  as  mineral  ground.  The  essential  acts  of  location  of  a 
placer  claim  vary  in  the  different  jurisdictions,  but,  as  in 
the  case  of  a  lode  claim,  include  (1)  a  discovery  notice;  (2) 
discovery  work;  (3)  marking  the  location  on  the  ground;  (4) 
the  location  notice;  and  (5)  record. 

A  placer,  as  we  have  already  seen,  means,  under  the  United  States 
laws,  a  mineral  deposit,  which  may  be  located,  and  yet  is  not  a  vein  or 
lode.  Placers  were  not  provided  for  in  the  act  of  1866,  but  were  by  the 
act  of  July  9,  1870.  They  have  played  an  important  part  in  mining  op- 
erations. What  deposits  are  so  mineral  as  to  be  possible  of  location  as 
placers  has  been  a  subject  of  dispute  and  of  conflicting  departmental 
rulings,  and  sometimes  statutes  have  been  needed  to  settle  the  matter. 

Oil  Lands. 

Lands  containing  deposits  of  petroleum,  for  instance,  were  originally 
treated  by  the  land  department  an<4  the  courts  as  subject  to  the  placer 
laws ; a  but  finally  the  land  department  ruled  that  oil  was  not  a  mineral, 
and  that  oil  lands  could  not  be  taken  up  as  placers.2  The  latter  ruling 
was  at  once  followed  by  an  act  of  Congress  making  "lands  containing 
petroleum  or  other  mineral  oils  and  chiefly  valuable  therefor"  subject 
to  entry  and  patent  "under  the  provisions  of  the  laws  relating  to  placer 
mineral  lands."  8  That  act  expressly  applied  to  previous  as  well  as  to 

1  See  Roberts  v.  Jepson,  4  Land  Dec.  Dep.  Int.  60 ;    Samuel  E.  Rogers,  4 
Land  Dec.  Dep.  Int.  284;   GIRD  v.  CALIFORNIA  OIL  CO.  (C.  C.)  60  Fed.  532; 
Van  Horn  v.  State,  5  Wyo.  501,  40  Pac.  964. 

2  Union  Oil  Co.,  23  Land  Dec.  Dep.  Int.  222.     See  Dunham  v.  Kirkpatrick, 
101  Pa.  36,  47  Am.  Rep.  696.    But  see  Gill  v.  Weston,  110  Pa.  317, 1  Atl.  921. 

*  Act  Feb.  11,  1897,  c.  216,  29  Stat.  526  (U.  S.  Comp.  St.  1901,  p.  1434). 


246  LOCATION    OF   PLACERS.  (Ch.  15 

future  locations,  and  under  its  influence  the  land  department  reversed 
the  ruling  which  called  forth  the  statute.4 

Stone  Lands. 

Building  stone  lands  have  also  been  the  subject  of  controversy;5 
but  since  the  act  of  August  4,  1892,6  lands  chiefly  valuable  for  build- 
ing stone  may  be  located  either  under  the  timber  and  stone  act  of  1878 
or  under  the  placer  laws.  As  the  timber  and  stone  act  applies  only  to 
surveyed  lands,  building  stone  unsurveyed  lands  must  still  be  entered 
under  the  placer  laws. 

Salt  Lands. 

Still  another  example  of  diverse  usage  is  found  in  regard  to  saline 
lands.  Prior  to  the  act  of  January  31,  1901,7  saline  lands  were  dis- 
posed of  under  land  grants  to  states  and  under  the  act  of  January  12^ 
1877,8  which  authorized  in  a  few  states  the  sale  of  saline  lands  at  pub- 
lic auction  or  private  sale  at  not  less  than  $1.25  an  acre.  While  salt 
deposits  might  in  time  have  been  held  locatable  under  the  general  plac- 
er laws,  the  act  of  January  31,  1901,  settled  the  matter  by  enacting 
"that  all  unoccupied  lands  of  the  United  States  containing  salt  springs 
or  deposits  of  salt,  in  any  form,  and  chiefly  valuable  therefor,  are  here- 
by declared  to  be  subject  to  location  and  purchase  under  the  provi- 
sions of  the  law  relating  to  placer  mining  claims ;  provided  that  the 
same  person  shall  not  locate  or  enter  more  than  one  claim  hereunder."  9 
This  saline  act  is  applicable  to  all  the  public  land  states  and  territories, 
except  to  states,  such  as  Utah,  where  all  saline  lands  belonging  to  the 
United  States  were  ceded  to  the  state.10  As  the  saline  act  makes  sub- 
ject to  location  as  placers,  "deposits  of  salt  in  any  form,"  it  would 
seem  to  be  certain  that  salt  rock  may  be  located  as  a  placer,  and  not  as 
a  lode. 

The  Acts  of  Location. 

In  the  case  of  placers,  as  in  the  case  of  lodes,  discovery  must  be 
followed  by  the  acts  of  location,  if  it  has  not  been  preceded  by  them. 

*  Union  Oil  Co.,  25  Land  Dec.  Dep.  Int.  351.  See  McQuiddy  v.  State  of 
California,  29  Land  Dec.  Dep.  Int.  181;  Kern  Oil  Co.  v.  Clotfeter,  30  Land 
Dec.  Dep.  Int.  583. 

B  See  Conlin  v.  Kelly,  12  Land  Dec.  Dep.  Int.  1,  holding  in  1891  that  building 
stone  lands  are  not  placers,  though  as  early  as  1884  it  was  held  that  they 
were.  H.  P.  Bennet,  Jr.,  3  Land  Dec.  Dep.  Int.  116.  See,  also,  Wheeler  V* 
Smith,  5  Wash.  704,  32  Pac.  784. 

e  27  Stat.  348,  c.  375,  §  1  (U.  S.  Comp.  St.  1901,  p.  1434). 

i  31  Stat.  745,  c.  186  (U.  S.  Coinp.  St.  1901,  p.  1435). 

»  19  Stat.  221,  c.  18,  §  1  (U.  S.  Comp.  St.  1901,  p.  1547). 

»  31  Stat.  745,  c.  186  (U.  S.  Comp.  St.  1901,  p.  1435). 

10  The  Utah  act  i*  Act  July  16,  1894,  c.  138,  §  8,  28  Stat.  307. 


§  70)  THE    DISCOVERY   NOTICE.  247 

The  acts  of  location  for  placers  are  generally  fixed  by  the  local  statutes, 
and  are  in  the  main  the  same  as  those  for  lodes,  though  only  a  few- 
states  require  discovery  work  on  placers.  Where  there  are  no  local 
statutes  or  rules  on  the  question,  the  essential  acts  of  location  would 
seem  to  be :  (1)  Notice  of  discovery,  either  posted  on  the  claim  or  giv- 
en to  prospectors  by  the  nature  of  the  actual  possession;  (2)  the  mark- 
ing of  the  location  on  the  ground,  so  that  the  boundaries  may  readily 
be  traced.  Where  record  is  called  for  by  the  local  statute,  the  federal 
statute  requires  the  location  certificate  or  declaratory  statement  to  de- 
scribe the  claim  by  reference  to  some  natural  object  or  permanent  mon- 
ument which  will  identify  it.11  The  acts  of  location  are  as  mandatory 
in  the  case  of  placers  as  in  the  case  of  lodes,  and  a  notice  of  discovery 
is  as  much  a  requirement  of  mining  custom  in  the  case  of  placers  as  it 
is  in'  the  case  of  lodes.  As  Alaska,  California,  New  Mexico,  North 
Dakota,  Oregon,  and  South  Dakota  seem  to  have  no  statutes  specific- 
ally naming  placers  and  providing  for  them,  the  above  requirements, 
including  record,  would  seem  to  be  all  that  need  be  complied  with  in 
those  states  and  territories,  except  where  district  rules  and  regulations 
which  make  additional  requirements  exist.12 


THE    DISCOVERY   NOTICE. 

70.  The  discovery  notice  required  is  just  like  that  for  lodes,  except, 
of  course,  that  instead  of  distance  along  the  vein  being* 
stated  the  number  of  acres  should  be  given. 

What  has  been  said  as  to  discovery  notices  in  the  case  of  lode  claims 
applies  to  placers.18  A  sufficient  discovery  notice,  where  the  state 
statute  does  not  require,  as  the  Idaho  statute  does,  the  dimensions  of 
the  claim  to  be  stated  and  the  distance  from  the  post  or  monument  con- 
taining the  notice  to  a  natural  object  or  permanent  monument  that  will 

11  Compare  instructions  quoted  and  approved  in  Walton  v.  Wild  Goose  Min- 
ing &  Trading  Co.,  123  Fed.  209,  60  C.  C.  A.  155. 

12  Placer  claims  "have  been  at  all  times  regulated  as  to  size,  labor,  mode 
of  location,  etc.,  by  the  district  rules  to  a  much  greater  extent  than  lode 
claims."    Morrison's  Mining  Rights  (13th  Ed.)  210. 

is  It  is  interesting  to  note  that  Messrs.  Morrison  and  De  Soto  come  out 
stronger  for  a  discovery  notice  in  the  case  of  placers  than  of  lodes.  Of  the 
placer  discovery  notice  they  say:  "We  do  not  consider  that  the  above  notice 
is  essential  in  all  cases,  but  it  is  customary.  If  the  claimant  was  the  actual 
first  discoverer  of  the  mineral,  it  might  not  be  required ;  but,  if  the  existence 
of  the  gold  or  other  deposit  had  been  a  matter  of  common  notoriety,  we  do  not 
see  why  one  person  more  than  another  could  claim  the  time  allowed  to  a  dis- 
ooverer  without  some  such  notice."  Morrison's  Mining  Rights  (13th  Ed.)  216. 


248  LOCATION  OF  PLACERS.  (Ch.  15 

fix  and  describe  in  the  notice  itself  the  location  of  the  claim,  would  be 
as  follows :  • 

"Keystone  Placer  Claim. 

"The  undersigned  claims  the  statutory  time  to  complete  location  of 
twenty  acres  for  placer  mining.  Discovery  date,  February  1,  1908. 

"John  Smith/' 

Any  stronger  notice  would  have  to  be  like  the  location  notice,  dis- 
cussed later,  to  which  reference  is  hereby  made. 

THE  DISCOVERY  WORK. 

71.    Discovery  work  is  required  in  a  few  states,  and  its  amount  and 
character  varies  in  the  different  jurisdictions. 

In  Idaho  the  discoverer  must,  within  15  days  after  making  the  lo- 
cation, make  an  excavation  on  the  claim  to  prospect  it,  the  excavation 
to  be  of  not  less  than  100  cubic  feet.  In  Montana  the  same  amount 
of  work  has  to  be  done  on  the  claim  within  60  days  from  the  date  of 
posting  notice  of  location  as  has  to  be  done  in  the  case  of  a  lode  claim. 
In  Nevada  the  locator  within  90  days  after  posting  notice  of  location 
must  perform  not  less  than  $20  worth  of  development  labor.  In  Wash- 
ington, in  the  case  of  placers  other  than  oil,  gas,  and  other  natural  oil 
products,  the  locator  within  60  days  from  discovery  must  perform  la- 
bor equivalent  in  the  aggregate  to  at  least  $10  worth  for  each  20  acres, 
and  upon  the  completion  of  that  labor  he  must  file  with  the  county  au- 
ditor an  affidavit  showing  the  nature  and  kind  of  work  done. 

The  above  four  states  seem  to  be  the  only  ones  requiring  discovery 
work  in  the  case  of  placers,  probably  because  the  other  states  have 
felt  that  the  character  of  the  deposit  would  either  be  apparent  at  the 
start  or  require  such  a  large  expenditure  to  ascertain  that  there  would 
not  be  any  danger  of  bad  faith  in  placer  locations.14  The  relative  un- 

i*  "A  discovery  pit  or  shaft  on  a  vein  shows  to  the  eye  a  mineral  formation 
specifically  distinct  from  the  surrounding  country.  A  pit  or  shaft  on  placer 
gravel  shows  nothing  of  that  sort.  A  pit  or  shaft  on  any  of  the  various  min- 
erals claimed  as  placers  might  or  might  not  show  such  indication.  Such  work- 
Ing  is  not  essential  to  the  disclosure  of  mineral  value  on  this  class  of  claims. 
But  it  is  clear  from  the  implied  requirements  of  knowledge  or  discovery  of 
mineral  character  that  the  ground  about  to  be  located  must  have  a  special 
value  as  either  placer  proper  or  for  some  special  deposit  treated  as  placer 
ground  under  the  statute,  and  that  merely  surveying  [marking]  and  record- 
ing vacant  land  as  and  for  placer  ground,  without  known  value  under  either 
class,  is  a  void  proceeding,  when  properly  contested  or  attacked."  Morrison's 
Mining  Rights  (13th  Ed.)  214. 


§  72)  MARKING   THE   LOCATION   ON   THE    GROUND.  249 

importance  of  placer  claims  seems  to  be  partly  responsible  for  the  fail- 
ure of  some  states  to  require  discovery  work  for  placers,  though  they 
require  it  for  lode  claims. 


MARKING  THE  LOCATION   ON   THE   GROUND. 

72.  The  federal  requirement  that  the  location  must  be  marked  on  the 
ground,  so  that  its  boundaries  may  readily  be  traced,  is  seem- 
ingly complied  with  by  posting  a  notice  on  the  placer  claim- 
ing it  by  proper  survey  subdivision;  but  this  is  wrong  in  prin- 
ciple, unless  the  original  survey  stakes  which  bound  the  claim 
are  in  place.  The  local  statutes  about  the  placing  of  bound- 
ary stakes,  where  there  are  any  such  statutes,  must,  of  course, 
be  complied  with.  Where  160  acres  is  located  by  an  associa- 
tion of  persons,  it  is  not  necessary  to  mark  the  'boundaries 
of  each  20-acre  tract;  but,  if  the  exterior  boundaries  of  the 
160-acre  tract  are  marked,  that  is  sufficient. 

The  federal  statutory  requirement  that  a  placer  mining  location 
shall  conform  as  nearly  as  practicable  to  the  subdivisions  of 
the  public  surveys  is  being  given  increasingly  strict  construc- 
tion by  the  land  department,  which  insists  that  even  placers 
located  on  unsnrveyed  lands  shall  in  general  be  rectangular 
in  shape. 

The  time  •within  which  to  mark  the  location  and  boundaries  varies 
in  the  different  jurisdictions. 

As  in  the  case  of  lode  claims,  so  in  placers,  the  mining  claim  or  loca- 
tion must  be  so  marked  upon  the  ground  that  its  boundaries  may  read- 
ily be  traced.15  This  requirement  is  complicated  in  the  case  of  placers 
by  the  further  requirement  that  placer  claims  upon  surveyed  lands 
"shall  conform  as  near  as  practicable  with  the  United  States  system  of 
public  land  surveys  and  the  rectangular  subdivisions  of  such  sur- 
veys." 16  Because  of  this  latter  requirement  it  has  been  contended  that 
where  a  placer  claim  has  been  located  according  to  subdivisions  of  the 
public  surveys,  as,  for  instance,  "the  N.  W.  quarter  of  Sec.  No.  1,"  etc., 
it  is  not  necessary  to  mark  the  boundaries  on  the  ground,  but  that  the 
description  in  the  posted  or  in  the  recorded  notice  in  words  such  as 
those  used  above,  giving  also  the  township  and  range,  will  dispense 
with  the  necessity  of  marking  the  boundaries.  In  the  case  where  the 
placer  claim  covers  a  whole  quarter  section  there  is  some  sense  in  this 
argument,  since  the  United  States  government  sets  stakes  at  the  quart- 
er section  corners,  and  the  locator  may  properly  be  said,  therefore,  to 

IB  Anthony  v.  Jillson,  83  Cal.  296,  23  Pac.  419;  Sweet  v.  Webber,  7  Colo. 
443,  4  Pac.  752. 

i«  Rev.  St.  U.  S.  §  2331  (U.  S.  Comp.  St.  1901,  p.  1432). 


250  LOCATION   OF   PLACERS.  (Ch.  15 

have  adopted  those  stakes  as  his  own,  just  as  the  relocator  of  a  lode 
claim  who  goes  about  the  matter  properly  may  adopt  as  his  own  the 
stakes  of  the  previous  locator.17  An  adoption  of  boundary  stakes 
should  not  be  allowed,  however,  where  the  stakes  adopted  do  not  so 
mark  the  boundaries  on  the  ground  that  the  location  may  readily  be 
identified,  and  where  a  subdivision  which  the  United  States  does  not 
stake  (and  subdivisions  of  less  than  a  quarter  section  are  not  marked 
on  the  ground,  but  are  simply  protracted  in  the  surveyor  general's 
office  on  the  township  plats)18  is  located  or  attempted  to  be  located, 
there  is  no  justification  for  holding  that  the  requirement  of  marking 
the  boundaries  is  dispensed  with.  Neither  is  there  any  justification  for 
holding  that  it  is  dispensed  with  where  the  government  stakes  have 
been  obliterated. 

The  whole  object  of  requiring  the  location  to  be  staked  on  the 
ground  is  to  enable  prospectors  to  find  readily  the  situs  and  exact  area 
of  the  claim,  and  a  description  in  a  notice  by  reference  to  imaginary 
lines  protracted  on  the  township  plats  in  the  surveyor  general's  office 
wholly  fails  to  serve  that  object.  While  the  land  department  has 
held  that  a  marking  of  the  boundaries  is  unnecessary  where  subdivi- 
sions as  small  as  10  acres  are  taken,19  and  those  are  the  smallest  sub- 
divisions allowed,20  the  contrary  doctrine  would  seem  on  principle  to 
be  the  sound  one.21  As  the  Supreme  Court  of  California  said  in 
White  v.  Lee:  "The  purpose  of  the  requirement  that  the  claimant 
shall  mark  the  boundaries  of  his  claim  is  to  inform  other  miners  as  to 
what  portion  of  the  ground  is  already  occupied.  The  men  for  whose 
information  the  boundaries  are  required  to  be  marked  wander  over  the 
mountains  with  a  very  small  outfit.  They  do  not  take  surveyors  with 
them  to  ascertain  where  the  section  lines  run,  and  ordinarily  it  would 
do  them  no  good  to  be  informed  that  a  quarter  section  of  a  particular 
number  had  been  taken  up.  They  would  derive  no  more  information 
from  it  than  they  would  from  a  description  by  metes  and  bounds,  such 

IT  Brockbank  v.  Albion  Min.  Co.,  29  Utah,  367,  81  Pac.  863. 

is  Donaldson,  Public  Domain,  184,  says  that  sections  "are  the  smallest  tracts 
the  outboundaries  of  which  the  law  requires  to  be  actually  surveyed."  Quar- 
ter sections  are,  however,  actually  surveyed  and  marked  on  the  ground  by 
stakes. 

i»  Reins  v.  Murray,  22  Land  Dec.  Dep.  Int.  409.  See  Freezer  v.  Sweeney, 
8  Mont.  508,  21  Pac.  20. 

20  Rev.  St.  U.  S.  §  2330  (U.  S.  Comp.  St.  1901,  p.  1432). 

21  WHITE  v.  LEE,  78  Cal.  593,  21  Pac.  363,  12  Am.  St.  Rep.  115;   Anthony 
v.  Jillson,  83  Cal.  296,  23  Pac.  419;    WORTHEN  v.  SIDWAY,  72  Ark.  215, 
79  S.  W.  777:    Sweet  v.  Webber,  7  Colo.  443,  4  Pac.  752.     See  Temescal  Oil 
Mining  &  Development  Co.  v.  Salcido,  137  Cal.  211,  69  Pac   1010. 


§  72)  MARKING  THE  LOCATION   ON  THE   GROUND.  251 

as  would  be  sufficient  in  a  deed.  For  the  information  of  these  men  it 
is  required  that  the  boundaries  shall  be  'distinctly  marked  upon  the 
ground/  The  section  lines  may  not  have  been  'distinctly'  marked  up- 
on the  ground,  or  the  marks  may  have  become  obliterated  by  time  or 
accident;  and  to  say  that  the  mere  reference  to  the  legal  subdivisions 
is  of  itself  sufficient  would,  in  our  opinion,  defeat  the  purpose  of  the 
requirement."  22 

While  in  Kern  Oil  Co.  v.  Crawford  the  California  court  expressly 
declared  the  case  of  White  v.  Lee  "overruled,"  because  that  case  pro- 
ceeded on  the  theory  that  the  boundaries  must  be  distinctly  marked  on 
the  ground,  whereas  the  federal  statute  requires  simply  that  "the  loca- 
tion shall  be  distinctly  marked  on  the  ground,  so  that  its  boundaries  can 
be  readily  traced,"  23  the  reason  given  for  overruling  White  v.  Lee 
leaves  its  essential  doctrine  unimpaired,  while  the  facts  of  Kern  Oil  Co. 
v.  Crawford  disclosed  a  staking  of  the  ground  which  probably  apprised 
the  subsequent  locator  of  the  exact  location  of  the  claim.  Kern  Oil  Co. 
v.  Crawford  is  inconsistent  in  reasoning  with  White  v.  Lee,  of  course ; 
for  in  Kern  Oil  Co.  v.  Crawford  the  court  says  that,  without  the  stakes 
put  on  the  ground  by  the  locator,  the  notice  would  have  been  enough. 
"The  notice  in  this  case  stated  to  the  world  that  the  N.  E.  *4  of  section' 
32  had  been  located  as  a  placer  claim.  The  notice  did  not  have  to  fur- 
ther state  the  boundaries  of  the  quarter  section,  nor  did  the  locator 
have  to  place  stakes  or  marks  upon  the  ground  to  show  to  any  one  the 
lines  of  the  quarter  section.  He  was  no  more  required  to  do  this  than 
he  was  to  take  the  defendant  around  and  show  her  the  lines."  24 

It  is  submitted,  however,  that  the  Arkansas  court  is  right  in  saying : 
"So  much  of  section  2331,  Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901,  p. 
1432),  as  provides  that,  where  the  lands  have  been  previously  surveyed 
by  the  United  States,  all  placer  mining  claims  located  thereon  shall 
conform  to  the  legal  subdivisions  of  the  public  lands,  is  simply  a  direc- 
tion as  to  where  the  claimant  shall  run  the  exterior  lines  of  his  claim. 
It  is  not  inconsistent  with  the  requirement  of  the  statute  as  to  how  the 
lines  shall  be  marked  or  evidenced ;  nor  does  it  dispense  with,  or  answer 
the  purpose  of,  such  requirement.  The  language  of  the  statute  is: 
'The  location  must  be  distinctly  marked  on  the  ground  so  that  its 
boundaries  can  be  readily  traced/  The  intention  of  this  statute  is  that 
the  boundaries  shall  be  so  designated  by  marks  that  they  can  be  as- 

2  2 WHITE   v.   LEE,  78  Gal.  593,  596,  21  Pac.   363. 

23  KERN  OIL  CO.  v.  CRAWFORD,  143  Cal.  298,  76  Pac.  1111,  1114,  3  L. 
R.  A.  (N.  S.)  993. 

2  *  Kern  Oil  Co.  v.  Crawford,  143  Cal.  298,  76  Pac.  lilt  3113,  3  L.  R. 
A.  (N.  S.)  993 


252  LOCATION  OF  PLACERS.  (Cll.  15 

certained  by  an  inspection  of  the  ground  without  the  aid  of  a  surveyor, 
and  can  be  readily  traced  by  such  marks."  25 

•  But,  while  the  Arkansas  court's  reasoning  is  in  thorough  accord 
with  the  spirit  of  the  mining  statutes,  it  has  to  be  conceded  that  the 
decision  in  Kern  Oil  Co.  v.  Crawford  and  the  language  used  by  the 
court  are  both  justified  by  the  United  States  Supreme  Court  decision 
in  McKinley  Creek  Min.  Co.  v.  Alaska  United  Min.  Co.26  Because, 
however,  the  Supreme  Court  of  the  United  States  may  yet  reverse 
itself  on  the  point,  a  prudent  locator  will  not  fail  to  stake  the  bound- 
aries of  his  placer  claim,  even  though  the  local  statutes  or  rules  do 
not  call,  for  such  staking,  and  even  though  the  claim  does  conform  to 
surveyed  subdivisions  of  the  government  lands.  Moreover,  where  the 
location  is  upon  unsurveyed  lands,  or  upon  surveyed  land  of  such  a 
character  that  the  location  cannot  be  made  to  conform  to  the  subdivi- 
sion of  the  public  land  surveys,  no  one  seems  ever  to  have  doubted 
the  need  of  a  proper  marking  of  the  boundaries  of  the  location. 

Conforming  Placer  Locations  to  Survey  Subdivisions. 

Before  the  question  of  a  proper  marking,  in  the  absence  of  special 
state  or  district  rule  requirements,  is  considered  in  more  detail,  a  word 
is  necessary  about  the  statutory  provision  that  the  location  shall  con- 
form as  nearly  as  practicable  to  the  rectangular  subdivisions  of  the  pub- 
lic land  surveys.  After  disregarding  this  provision  for  many  years,  the 
land  department  has  decided  to  enforce  it.  Whether  it  is  practicable 
to  make  a  location  conform  to  the  legal  subdivisions  of  the  public  sur- 
veys is  a  question  of  fact,  which  it  is  the  exclusive  province  of  the 
land  department  to  determine.  "Where  the  entire  placer  deposit  in 
a  canon  within  certain  limits  is  claimed,  and  where  the  adjoining  land 
on  either  side  is  totally  unfit  for  mining  or  agriculture,  the  location 
need  not  conform  to  the  subdivisions/'27  That  is  because  as  nearly 
as  practicable  means  "as  nearly  as  reasonably  practicable."  28  Yet 
the  fact  that  a  placer  mining  location,  if  made  to  conform  as  nearly  as 
"practicable  to  the  system  of  public  land  surveys  and  the  rectangular 
subdivisions  of  such  surveys,"  would  embrace  small  portions  of  land 

25WORTHEN  v.  SID  WAY,  72  Ark.  215,  79  S.  W.  777,  780.  See  Sweet 
v.  Webber,  7  Colo.  443,  4  Pac.  752. 

26  183  U.  S.  563,  22  Sup.  Ct.  84,  46  L.  Ed.  331. 

27  William  Rablin,  2  Land  Dec.  Dep.  Int.  764,  765;   WOOD  PLACER  MIN- 
ING CO.  (on  review)  32  Land  Dec.  Dep.  Int.  363.     See  Mitchell  v.  Hutchm- 
son,  142  Cal.  404,  76  Pac.  55.     For  the  evidence  required  to  sustain  such  a 
canon  or  gulch  irregularly  shaped  placer  claim,  see  Wood  Placer  Mining  Co. 
(on  review)  32  Land  Dec.  Dep.  Int.  401. 

28  Pearsall    and    Freeman,    6   Land    Dec.    Dep.    Int    227;     MITCHELL   y. 
HUTCHINSON,  142  Cal.  404,  76  Pac.  55. 


§  72)  MARKING   THE   LOCATION   ON    THE    GROUND.  253 

not  valuable  for  placer  mining  and  found  on  river  slopes  which  rise 
from  20  to  30  degrees,  constitutes  no  reason  for  failure  to  conform  the 
location  to  such  system  and  legal  subdivisions,  "where  the  lands  as  a 
whole  are  in  fact  more  valuable  for  placer  mining  than  for  agricul- 
tural purposes."  29  Nor  is  it  any  objection  to  conforming  the  placer 
to  surveyed  subdivisions  that  when  so  conformed  it  would  embrace 
part  of  prior  mineral  locations,30  though  in  the  case  of  unsurveyed 
subdivisions  it  appears  to  be  an  objection.31 

It  should  always  be  remembered  that  the  smallest  legal  subdivisions 
of  the  public  surveys  provided  for  by  the  mining  laws  is  a  subdivision 
of  10  acres,  in  square  form,  and  that  there  is  no  authority  "for  mak- 
ing entry  and  obtaining  patent  for  a  placer  claim  composed  of  tracts 
as  small  as  5  acres  in  area,  though  in  rectangular  form."  32  More- 
over, the  rectangular  subdivision  must  be  observed  on  unsurveyed 
lands,  and  as  far  as  possible  square  10-acre  blocks  of  unsurveyed 
lands  must  be  located  to  make  a  valid  placer  claim.33  As  the  land 
department  has  stated  recently:  "That  under  these  sections  [of  the 
Revised  Statutes  of  the  United  States]  placer  claims  located  since  May 
10,  1872,  whether  upon  surveyed  or  unsurveyed  lands,  are  required  to 
conform  as  nearly  as  practicable  to  the  United  States  system  of  public 
land  surveys,  is  settled  by  numerous  decisions  of  this  department. 
There  is  no  difficulty  in  applying  the  principle  to  a  claim  upon  unsur- 
veyed lands.  It  is  done  by  locating  the  claim  in  rectangular  form,  of 
lawful  dimensions,  and  with  east  and  west  and  north  and  south  bound- 
ary lines.34  If  the  claim  be  upon  surveyed  lands,  as  is  the  case  here,  the 
matter  of  conforming  the  same  to  the  public  surveys,  where  not  for 
some  sufficient  physical  or  other  reason  impracticable  to  do  so,  is  ac- 
complished simply  by  locating  the  claim  according  to  the  legal  sub- 
divisions of  such  survey."  35 

But  while  ordinarily  10-acre  squares  are  the  smallest  separate  parts 
of  which  the  20  acres  of  placer  location  by  an  individual,  or  the  160 
acres  or  less  of  placer  locations  by  an  association  of  persons,  may  be 
composed,  it  should  be  noticed  that  section  2330,  Rev.  St.  U.  S.,  spe- 

29  Hogan  and  Idaho  Placer  Mining  Claims,  34  Land  Dec.  Dep.  Int.  42.  The 
slope  of  the  banks  was  not  precipitous  enough.  See  Wood  Placer  Mining 
Co.  (on  review)  32  Land  Dec.  Dep.  Int.  363. 

soRiALTO  NO.  2  PLACER  MINING  *CLAIM,  34  Land  Dec.  Dep.  Int.  44. 

si  GOLDEN  CHIEF  A  PLACER  CLAIM,  35  Land  Dec.  Dep.  Int.  557. 

s  2  ROMAN  PLACER   MINING  CLAIM,  34  Land  Dec.  Dep.  Int.   260. 

a  s  Miller  Placer  Claim,  30  Land  Dec.  Dep.  Int.  225;  Wood  Placer  Mining 
Co.,  32  Land  Dec.  Dep.  Int.  198,  on  review  Id.  363,  401.  But  that  the  rule 
Is  contrary  in  Alaska,  see  Price  v.  Mclntosh,  1  Alaska,  286. 

s*  See  Laughing  Water  Placer,  34  Land  Dec.  Dep.  Int.  56. 

s  5  ROMAN  PLACER  MINING  CLAIM,  34  Land  Dec.  Dep.  Int.  260,  262. 


254  LOCATION  OF  PLACERS.  (Ch.  15 

cifically  provides  for  a  joint  entry  by  persons  "having  contiguous  claims 
of  any  size,  although  such  claims  may  be  less  than  10  acres  each."  The 
whole  matter  of  size  of  tracts  is  well  discussed  in  the  following  ex- 
tract from  a  departmental  opinion:  "The  smallest  legal  subdivision 
recognized  by  the  public  land  laws  other  than  the  placer  mining  laws 
is  a  tract  of  40  acres — that  is,  a  tract  in  square  form  constituting  one- 
fourth  of  a  quarter  section,  or  one-sixteenth  of  a  section  of  land — 
except  where,  by  reason  of  a  section  being  fractional,  its  subdivision 
into  smaller  tracts  may  result  in  the  formation  of  lots  of  irregular 
shape  and  dimensions,  in  which  event  such  lots  are  considered  legal 
subdivisions,  and  are  known  and  described  with  relation  to  the  sec- 
tion by  the  numbers  they  respectively  bear.  By  the  placer  mining  laws 
it  is  provided  that  'legal  subdivisions  of  40  acres  may  be  subdivided 
into  10-acre  tracts,'  and,  further,  that  'two  or  more  persons,  having 
contiguous  claims  of  any  size,  although  such  claims  may  be  less  than 
10  acres  each,  may  make  joint  entry  thereof/  These  provisions  are 
intended  to  meet  conditions,  which  not  infrequently  arise,  peculiar  to 
the  assertion  of  placer  claims,  where  the  claimed  placer  deposits  are 
limited  in  extent  to  tracts  of  much  smaller  area  than  40  acres.  In  such 
case  it  is  provided :  (1)  That  a  regular  subdivision  of  40  acres  may  be 
subdivided — that  is,  reduced  by  subdivision,  according  to  the  system 
of  public  land  surveys,  to  form  tracts  of  10  acres  each  in  square 
form ;  and  (2)  that  in  the  event  of  contiguous  claims  of  any  size, 
though  less  than  10  acres  each,  the  persons  or  associations  of  persons 
asserting  the  same  may  make  joint  entry  thereof.  Whether  under 
the  latter  provision  entry  and  patent  may  be  obtained  for  a  placer 
claim  or  claims  aggregating  less  than  10  acres  is  a  question  not  now 
before  the  department,  and  no  opinion  is  expressed  with  respect  there- 
to. It  is  sufficient  for  the  decision  of  this  case  to  say  that  the  stat- 
ute does  not  contemplate  that  in  the  location  and  entry  of  placer  min- 
ing claims  rectangular  tracts  of  5  acres  may  be  recognized  and  treat- 
ed as  legal  subdivisions  of  the  public  surveys.  The  smallest  legal  sub- 
division provided  for  by  the  statute  is  a  subdivision  of  10  acres,  and 
that  must  be  in  square  form,  else  it  would  not  be  a  subdivision  accord- 
ing to  the  system  of  the  public  land  surveys."  36 

How  to  Mark  Boundaries  under  the  Federal  Statute. 

We  are  now  ready  for  the  question  of  a  proper  marking  of  bound- 
aries, where  only  the  federal  statutes  need  to  be  observed.  Whether 
the  claim  be  one  of  20  acres  located  by  one  person,  or  one  of  160  acres 
located  by  an  association,  it  is  but  a .  single  claim.87  Accordingly, 

se  Roman  Placer   Mining  Claim,  34  Land  Dec.   Dep.   Int.   262,  263. 
37  MILLER  v.   CHRISMAN,   140  Cal.  440,   73  Pac.   1083,  74  Pac.  444,  98 
Am.   St.  Rep.  63. 


§  t*2)  MARKING   THE   LOCATION   ON    THE   GROUND.  255 

where  the  location  is  of  160  acres  by  an  association  of  persons,  it  is 
not  necessary  to  mark  the  boundaries  of  each  20-acre  tract;  for  the 
marking  is  sufficient  if  the  exterior  boundaries  of  the  160-acre  tract 
as  such  are  properly  marked.38  With  reference  to  what  is  a  suffi- 
cient marking  on  the  ground,  in  the.  absence  of  special  state  or  terri- 
torial requirements,  we  have  the  authority  of  the  United  States  Su- 
preme Court  that  it  may  be  practically  nothing,  if  only  the  notice  post- 
ed will  enable  the  boundaries  to  be  figured  out  accurately.  That 
court  held  in  the  case  of  McKinley  Creek  Min.  Co.  v.  Alaska  United 
Min.  Co.39  that  two  placer  claims  were  properly  marked  where  the 
notices  were  written  on  a  stump  in  a  creek  and  each  recited  that  the 
locator  claimed  "a  placer  mining  claim  1,500  feet  running  with  the 
creek  and  300  feet  on  each  side  from  center  of  creek  known  as  Mc- 
Kinley Creek,"  etc.,  and  that  the  claim  located  was  an  extension,  in 
the  one  case  east  and  in  the  other  west,  of  the  other  claim.  The 
statement  of  the  court  was:  "These  notices  constituted  a  sufficient 
location.  The  creek  was  identified,  and  between  it  and  the  stump 
there  was  a  definite  relation  which,  combined  with  the  measurements, 
enabled  the  boundaries  of  the  claim  to  be  readily  traced."  40 

In  view  of  the  foregoing  decision,  it  seems  apparent  that  in  Kern 
Oil  Co.  v.  Crawford,41  where  the  locators  posted  a  notice  claiming  a 
quarter  section  as  a  placer  and  set  stakes,  with  several  laths  between, 
to  mark  the  lines,  the  stakes  being  marked  as  quarter  section  corners, 
the  location  was  marked  on  the  ground,  so  that  its  boundaries  could 
readily  be  traced,  within  the  rule  adopted  in  McKinley  Creek  Min. 
Co.  v.  Alaska  United  Min.  Co.,  even  though  the  corner  stakes  were 
really  some  distance  from  the  real  quarter  section  corners.  As  the 
departmental  opinion  adopted  by  the  court  in  bank  in  that  case,  stated : 
"The  United  States  had  surveyed  and  marked  the  quarter  section  by 
monuments,  and  an  unintentional  mistake  in  retracing  the  lines  should 
not  be  held  to  be  a  waiver  by  the  locators  of  the  claim  to  the  whole 
quarter  section."  42 

But  it  cannot  be  that  the  Supreme  Court  of  the  United  States  will 
adhere  to  a  rule  so  inconsistent  with  the  object  of  notice  to  prospectors 

s*  MCDONALD  v.  MONTANA  WOOD  co.,  14  Mont  88,  35  Pac.  668,  43 

Am.  St.  Rep.  616. 

39  183  U.  S.  563,  22  Sup.  Ct  84,  46  L..  Ed.  331. 

40  id.     See,   also,   Moore  v.   Steelsmith,   1  Alaska,  121,  where,  however,  it 
is  stated  that  the  notices  must  be  posted  where  an  honest  prospector  would 
look,   and  Loeser  v.  Gardiner,   1  Alaska,  641,  where  the  side  lines  of.  the 
claim  were  computed  in  the  manner  called  for  by  Alaskan  mining  custom. 

41 143  Cal.  298,  76  Pac.  1111,  3  L.  R.  A.  (N.  S.)  993. 
*2  id. 


256  LOCATION  OF  PLACERS.  (Ch.  15 

which  is  a  basic  principle  of  the  mining  law.  To  say,  as  the  court  in 
Kern  Oil  Co.  v.  Crawford  said,  that  "any  person  seeing  the  notice 
could,  by  employing  a  surveyor  or  otherwise,  find  the  boundaries  as 
easily  as  could  the  locator,  and  it  evidently  is  the  duty  of  such  person 
to  do  so,  in  case  he  is  interested  in  knowing  where  they  are,"  43  is 
to  cast  an  undue  burden  on  the  s'econd  locator.  The  whole  spirit  of 
the  mining  law  requires  that  the  locator  shall,  as  nearly  as  may  be 
practicable  and  necessary  to  give  notice  to  other  prospectors,  approx- 
imate the  staking  used  in  Temescal  Oil  Mining  &  Development  Co.  v. 
Salcido,  where  the  section  corner  was  found  with  the  survey  monu- 
ments still  on  it,  and  the  other  three  corners  of  the  quarter  section 
were  then  marked  by  stakes  two  or  three  inches  in  diameter  and 
standing  a  foot  above  ground.44 

It  has  to  be  admitted,  however,  that  where  state  or  territorial  stat- 
utes or  district  rules  do  not  require  specific  acts,  the  authorities  seem 
to  require  practically  nothing,  except  that  on  a  stake  on  the  located 
ground  shall  be  posted  a  description  from  which  a  surveyor  could  run 
the  lines.  The  case  of  McKinley  Creek  Min.  Co.  v.  Alaska  United 
Min.  Co.  goes  far  enough,  indeed,  to  make  it  absolutely  immaterial 
whether  the  land  located  is  surveyed  public  land  or  not,  so  long  as  it 
can  be  said  that  the  lines  of  the  location  can  be  figured  out  from  the 
notice  posted  on  the  ground.45 

«  143  Cal.  298,  76  Pac.  1111,  1113,  3  L.  R.  A.  (N.  S.)  993. 

44  TEMESCAL  OIL  MINING  &  DEVELOPMENT  CO.  v.  SALCIDO,  137 
Cal.  211,  69  Pac.  1010. 

45McKINLEY  CREEK  MIN.  CO.  v.  ALASKA  UNITED  MIN.  CO.,  183 
U.  S.  563,  22  Sup.  Ct.  84,  46  L.  Ed.  331.  See  Loeser  v.  Gardiner,  1  Alaska, 
641,  for  an  extreme  application  of  that  doctrine.  In  that  case,  a  suit  to 
quiet  title  to  a  placer  claim,  the  court  said:  "I  am  not  without  doubt  upon 
the  question  whether  two  center  stakes,  with  notices  failing  to  specify  the 
exact  width  of  the  claim,  even  when  supported  by  a  custom  that  it  shall 
be  a  sufficient  width  to  embrace  20  acres,  and  when  the  claim  is  staked  by 
a  number  in  a  regular  series,  is  a  sufficiently  distinct  marking  on  the 
ground,  so  that  its  boundaries  can  be  readily  traced.  Where,  however,  the 
relocator  is  an  intruder  upon  another  location,  as  in  the  case  at  bar,  I  am 
inclined  to  insist  that  every  reasonable  doubt,  either  of  law  or  fact,  shall  be 
resolved  in  favor  of  the  protection  of  the  claims  of  the  prior  locator.  Upon 
the  principle  of  the  authorities  cited,  I  am  of  opinion  that  the  location  in 
question  by  two  center  stakes,  posted  or  written  notices,  and  by  serial  num- 
ber, is  a  sufficient  marking  of  the  location;  that  under  such  circumstances 
the  boundaries  of  the  claim  are  formed  by  side  lines  parallel  to  the  center 
lines,  and  by  end  lines  at  right  angles  thereto;  that  the  side  lines  shall  be 
located  equidistant  from  the  center  line,  and  far  enough  to  embrace  20 
acres,  and  no  more,  in  the  claim."  Wickersham,  J.f  in  Loeser  v.  Gardiner,  1 
Alaska,  641. 


§  72)  MARKING   THE   LOCATION   ON   THE   GROUND.  257 

How  to  Mark  Boundaries  under  the  Local  Statutes. 

The  federal  requirement  about  marking  boundaries  has  been  added 
to  in  some  of  the  states  and  territories.  In  Arizona  the  boundaries 
must  be  marked  by  a  post  or  monument  of  stones  at  each  angle  of  the 
claim,  posts  to  be  at  least  four  inches  square  by  four  feet  six  inches 
in  length,  set  one  foot  in  the  ground  and  surrounded  by  a  mound  of 
earth  or  stones,  or  if  it  is  impracticable  to  sink  the  posts  in  the  ground 
they  may  be  placed  in  piles  of  stones.  If  a  monument  of  stones  is 
used  in  place  of  posts,  it  must  be  at  least  four  feet  in  diameter  at  the 
base  and  three  feet  in  height.  Where  it  is  impossible  to  put  up  and 
keep  a  post  or  monument  at  the  proper  place,  a  witness  post  or  mon- 
ument may  be  used.  In  Colorado  the  boundaries  are  to  be  marked  by 
substantial  posts  sunk  in  the  ground,  one  at  each  angle  of  the  claim. 
In  Idaho,  Montana,  Nevada,  and  Utah,  the  same  marking  is  required 
as  in  the  case  of  lode  claims,  except  that  in  Nevada,  where  the  loca- 
tion is  on  surveyed  land  taken  by  legal  subdivisions,  nothing  except 
the  location  point  need  be  marked.46  In  Washington  the  placer  claim 
must  be  distinctly  marked  on  the  ground,  so  that  its  boundaries  may 
be  readily  traced,  whether  the  claim  is  located  by  subdivisions  of  the 
public  survey  or  not.  In  Wyoming  the  marking  must  be  by  substan- 
tial posts  or  stone  monuments  at  each  corner  of  the  claim.  Whether 
the  New  Mexico,  North  Dakota,  and  South  Dakota  mining  location 
laws  apply  to  placers  is  doubtful.  If  they  do,  the  same  marking  must 
be  made  for  placers  as  for  lodes,  and  wise  precaution  would  dictate 
such  marking.  In  Alaska,  California,  and  Oregon  the  question  of 
marking  is  left  to  the  federal  statute,  with  such  additional  require- 
ments as  district  rules  and  regulations  may  prescribe. 

The  time  of  marking  is  fixed  in  Colorado  by  the  time  for  record, 
which  is  within  30  days  from  the  date  of  discovery.  In  Idaho  the 
time  of  marking  is  fixed  "at  the  time  of  making  the  location."  In 
Montana  the  time  for  marking  is  to  be  within  30  days  from  the  date 
of  posting  notice  of  location.  In  Washington  it  is  to  be  within  30 
days  after  discovery.  As  in  the  case  of  lode  claims,  it  seems  that, 
except  in  California  and  Oregon,  a  reasonable  time  to  mark  the  bound- 
aries may  be  taken  where  no  specific  time  is  fixed.  In  California  and 


46  If  the  federal  statute  requires  a  marking  of  corners,  this  Nevada  statute 
can  be  sustained  only  where  the  survey  markings  still  remain  in  place  at 
the  time  of  the  location  of  the  placer  and  may  readily  be  found.  If  ap- 
plied to  other  situations,  the  statute  would  seem  to  be  repugnant  to  the 
federal  statute  requiring  the  location  to  be  marked.  Yet  it  must  be  re- 
membered that  the  statute  requires  as  much  as  was  furnished  in  McKINLEY 
CREEK  MIN.  GO.  v.  ALASKA  UNITED  MIN.  CO.,  183  U.  S.  563,  22  Sup. 
Ct  84,  46  L.  Ed.  331,  if  that  decision  is  to  stand. 

COST.MIN.L.— 17 


258  LOCATION  OF  PLACERS.  (Ch.  15 

Oregon,  unless  district  rules  otherwise  provide,  the  marking  in  the 
case  of  placers,  as  in  the  case  of  lodes,  must  probably  be  attended  to 
immediately.  In  states  and  territories  where  a  record  is  called  for, 
it  is  as  essential  in  marking  placers  as  in  marking  lode  claims  that 
natural  objects  or  permanent  monuments  be  selected  to  tie  the  claim 
to  in  the  recorded  description.  'These  objects  or  monuments  should 
be  connected  by  courses  and  distances  with  some  of  the  angles  of 
the  claim,  and,  if  a  discovery  excavation  is  required,  it  would  be  well 
to  connect  them  with  that  also. 

Excessive  Location. 

The  question  of  excessive  placer  locations  requires  the  same  treat- 
ment as  that  of  excessive  lode  locations,47  except,  of  course,  that  there 
is  no  question  of  excessive  location  claimed  to  arise  because  of  the 
departure  of  a  vein  from  a  side  line. 

THE  LOCATION  NOTICE. 

73.    The  location  notice  requirements  vary  in  the  different  jurisdic- 
tions, but  are  much  like  those  in  the  case  of  lode  claims. 

In  Arizona  the  notice  of  location  must  contain  the  name  of  the  claim, 
the  name  of  the  locator,  the  date  of  location,  the  number  of  acres 
claimed,  and  the  locality  of  the  claim  with  reference  to  natural  objects 
or  permanent  monuments.  In  Colorado  the  notice  must  contain  the 
same,  with  the  exceptions  that  the  date  of  discovery,  instead  of  date  of 
location,  must  be  given,  and  that,  instead  of  the  number  of  acres,  the 
number  of  feet  claimed  may  be  given.  In  Idaho  the  notice  must  contain 
the  name  and  dimensions  of  the  claim,  the  name  of  the  locator,  the 
date  of  the  location,  the  mining  district,  if  any,  the  county,  and  the 
distance  and  direction  from  the  corner  post  on  which  the  notice  is 
posted  to  such  natural  object  or  permanent  monument  as  will  fix  and 
describe  in  the  notice  itself  the  location  of  the  claim.  In  Montana 
and  Nevada  the  requirements  are  the  same  as  in  Colorado,  except  that, 
instead  of  the  date  of  discovery,  the  date  of  the  location,  which  in 
Montana  is  fixed  as  the  day  of  posting  the  notice,  is  to  be  given.  In 
Utah  the  requirement  is  practically  that  of  Arizona.  In  Washington 
the  notice  must  contain  the  name  of  the  claim,  the  name  of  the  loca- 
tor, the  date  of  discovery  and  posting  of  .notice,  which  shall  be  con- 
sidered the  date  of  location,  a  description  of  the  claim  by  reference  to 
legal  subdivisions  if  made  on  surveyed  public  lands,  and  if  not  a 

^T  McINTOSH  v.  PRICE,  121  Fed.  716,  58  C.  C.  A.  136 ;  Pratt  v.  United 
Alaska  Min.  Co.,  1  Alaska,  95;  Zimmerman  v.  Funchlon  (C.  C.  A.)  161  Fed. 
859. 


§  74)  RECORD.  259 

description  with  reference  to  natural  objects  or  permanent  monuments. 
In  Wyoming  the  notice  is  like  that  in  Colorado. 

Where  the  statute  does  not,  as  in  Idaho,  direct  just  where  the 
notice  shall  be  posted,  it  should  be  put  in  a  conspicuous  place 
near  the  discovery  workings,  if  any,  and,  if  none,  near  the  center 
of  the  located  ground.  The  placer  statutes  contemplate  the  post- 
ing of  the  location  notice  within  a  reasonably  short  time  after 
discovery.  Even  the  statutes  requiring  the  notice  to  state  the  date  of 
location  are  susceptible  of  the  interpretation  of  date  of  discovery, 
though  "date  of  location"  normally  means  "the  date  when  the  posting 
and  staking  are  completed,"  48  and  marking  the  location  on  the  ground 
would  therefore  seem  to  be  the  date  of  location  for  location  notice  pur- 
poses, except  in  Montana,  where  by  statute  the  date  of  posting  the 
notice  is  fixed  as  the  date  of  location. 

A  notice  of  location  that  would  serve,  except  in  Idaho  and  states 
requiring  a  description,  would  be  as  follows : 

"Laughing  Water  Placer  Claim. 

"The  undersigned  claims  20  acres  as  staked,  1,320  feet  in  length 
along  this  Willow  creek  by  660  feet  in  width,  for  placer  mining  pur- 
poses. Discovered  and  located  January  2,  1908.  Richard  Black." 

For  states  and  territories  where  a  description  is  required,  the  form 
for  a  recorded  location  certificate  should  be  followed. 


RECORD. 

74.  Record  requirements  for  placer  claims  vary  in  the  different 
jurisdictions,  and  are  inucli  like  those  governing  the  case  of 
lode  claims1.  Prudence  dictates  the  making  of  a  record,  even 
•where  the  local  rules  or  statutes  do  not  require  it. 

In  the  case  of  placer  claims,  as  in  the  case  of  lode,  the  act  of  Con- 
gress does  not  compel  a  record ; 49  but,  if  a  record  is  required  by  a 
local  rule  or  statute,  it  must  contain  the  description  and  details  re- 
quired by  Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p, 
1426). 50  No  record  is  called  for  in  Oregon,  and,  unless  the  lode  claim 
acts  apply  to  placers,51  no  record  is  required  in  New  Mexico,  North 

*«  Morrison's  Mining  Rights  (13th  Ed.)  217. 

4»  McINTOSH  v.  PRICE,  121  Fed.  716,  58  C.  C.  A.  136. 

»o  If  the  land  is  properly  designated  by  reference  to  adjoining  tracts  and 
number  of  acres,  the  insertion  in  the  recorded  notice  of  the  wrong  quarter 
section  number  will  not  invalidate  it.  Duryea  v.  Boucher,  67  Cal.  141,  7 
Pac.  421. 

6i  That  they  may  not  do  so,  see  Moxon  v.  Wilkinson,  2  Mont  421. 


260  LOCATION  OF  PLACERS.  (Ql.  15 

Dakota,  and  South  Dakota.  Where  a  record  is  required  for  mining 
claims,  that,  of  course,  includes  placers.52  As  a  precaution  a  record 
should  always  be  made.  Where  an  association  of  persons  locates  a 
160-acre  placer  claim,  a  separate  recording  for  each  20-acre  tract  in- 
cluded in  it  is  unnecessary.63 

In  Arizona,  Idaho,  Utah,  and  Washington  the  location  certificate  is 
substantially  a  copy  of  the  posted  notice.  In  Colorado  and  Wyoming 
it  is  the  same  as  the  posted  notice,  except  that  the  date  of  location, 
instead  of  the  date  of  discovery,  is  given  in  the  recorded  certificate, 
and  a  description  of  the  claim  by  reference  to  natural  objects  or  per- 
manent monuments  is  added.  In  Montana  what  is  in  the  posted  no- 
tice of  location  must  be  in  the  location  certificate,  and  there  must  be 
added  a  description  of  the  claim  with  reference  to  natural  objects  or 
permanent  monuments,  and  the  dimensions  or  area  of  the  claim 
and  location  thereon  of  the  work  done.  In  Nevada  the  statements  in 
the  posted  notice  must  be  repeated,  with  the  addition  of  a  descrip- 
tion of  the  claim  by  reference  to  natural  objects  or  permanent  monu- 
ments, and  the  kind  and  amount  of  work  done,  and  the  place  on  the 
claim  where  done.  In  Idaho  and  Montana  the  copy  of  the  location 
notice  recorded  has  to  be  verified  as  in  the  case  of  lode  claims. 

Amended  Location  Certificate. 

In  Colorado  an  amended  location  certificate  may  be  filed  for  placers, 
as  well  as  for  lodes ; 54  and  in  general  it  may  be  expected  that  rules 
in  regard  to  lodes  will  apply  to  placers,  except  so  far  as  the  essential 
differences  in  the  two  classes  of  claims  necessarily  prevent  such 
application. 

LODES  WITHIN  PLACERS. 

75.  Known  lodes  within   placers,   not  located  as  lodes  by  the  placer 

claimant,  may  probably  be  located  by  third  parties  prior  to 
the  application  for  placer  patent,  and  clearly  may  be  so  lo- 
cated after  an  application  for  placer  patent  in  which  the 
known  lodes  are  not  claimed  by  the  applicant  for  a  placer  pat- 
ent. Bnt  third  parties,  who  enter  upon  an  unpatented  placer 
against  the  protest  of  the  placer  owner  to  prospect  for  lodes, 
cannot  make  a  valid  location  of  the  lodes  discovered. 

76.  A  known  lode  is  one  which,   at  the  time  of  the  application  for 

placer  patent,  is  known  to  the  applicant  for  placer  patent,  or 
to  the  community  generally,  to  exist  and  to  carry  ore  in- 
quality  and  quantity  to  justify  its  -working,  or  which  would 

82  Sweet  v.  Webber,  7  Colo.  443,  4  Pac.  752. 

53  MCDONALD  v.  MONTANA  WOOD  co.,  14  Mont  88,  35  Pac.  668,  43 

Am.  St.  Rep.  616.  ; 

«*  KIRK  v.  MELDRUM,  28  Colo.  453,  65  Pac.  633. 


§§  75-77)  LODES   WITHIN   PLACERS.  261 

have  been  so  known  to  the  applicant  if  he  had  made  a  rea- 
sonable and  fair  inspection  of  the  premises. 

77.  A  "known  lode"  in  a  placer  is  located  in  the  same  way  as  any 
other  lode,  except  that,  if  the  placer  location  is  valid,  third 
parties  cannot  claim  more  of  the  lode  in  the  placer  than  5O 
feet  in  width  by  1,500  feet  in  length. 

It  often  happens  that  land  taken  up  as  placer  includes  a  lode ;  and 
that  is,  of  course,  still  more  likely  to  happen  under  the  present  ruling 
of  the  land  department  that  placers  must  be  composed,  if  practicable,- 
of  not  less  than  10-acre  squares.  The  possibility  of  lodes  existing  in 
placer  ground  was  recognized  in  the  act  of  1872,  and  by  it  provision 
was  made  whereby  the  patentee  of  the  placer  ground  should  own  all 
veins  or  lodes  not  known  to  exist  at  the  time  of  the  application  for 
patent,  and  might  acquire  at  that  time  if  he  saw  fit  those  then  known, 
and  whereby  other  persons  might  acquire  known  lodes  which  the 
patentee  of  the  placer  did  not  make  an  application  to  patent.55  Lodes 
not  known  at  the  date  of  application  for  placer  patent,  of  course,  pass 
l>y  that  patent.58 

Definition  of  "Known  Lodes." 

A  known  vein  in  a  placer  is  "one  known  to  exist  at  the  time  of  the 
application  for  patent  for  such  placer,57  and  to  contain  minerals  in  such 
quantity  and  quality  as  to  justify  expenditure  for  the  purpose  of  ex- 
tracting them.  Mere  outcroppings  or  other  indications  of  a  vein 
within  the  limits  of  a  placer,  or  evidence  of  the  existence  of  a  vein 
which  might  be  sufficient  to  support  a  lode  location  as  against  a  con- 
flicting lode  claim,  or  sustain  a  lode  location  as  against  a  subsequent 
placer  location  in  an  adverse  proceeding,  are  not  sufficient  to  estab- 
lish the  existence  of  a  known  vein  or  lode  within  the  boundaries  of  a 
placer  prior  in  point  of  time  and  which  has  been  patented."  58  That 
is  because  "the  burden  of  proof  in  such  circumstances  is  upon  the 

«  Rev.  St.  U.  S.  §  2333  (U.  S.  Comp.  St.  1901,  p.  1433). 

56  Montana  Copper  Co.  v.   Dahl,  6  Mont.   131,  9  Pac.  894;    Raunheim  v. 
Dahl,  6  Mont.  167,  9  Pac.  892. 

57  DAHL  v.   RAUNHEIM,  132   U.  S.  260,   10  Sup.  Ct   74,  33  L.   Ed.  324; 
IRON  SILVER  MIN.  CO.  v.  MIKE  &  STARR  GOLD  &  SILVER  MIN.  CO., 
143  U.  S.  394,  430,  12  Sup.  Ct.  543,  36  L.  Ed.  201. 

ss  McCONAGHY  v.  DOYLE,  32  Colo.  92,  96,  97,  75  Pac.  419,  420,  421. 
To  the  same  effect  are  MONTANA  CENT.  RY.  CO.  v.  MIGEON  (C.  C.)  68 
Fed.  811 ;  Migeon  v.  Montana  Cent.  Ry.  Co.,  77  Fed.  249,  23  C.  C.  A.  156 ; 
Brownfield  v.  Bier,  15  Mont.  l03,  39  Pac.  461;  Casey  v.  Thieviege,  19  Mont 
341,  48  Pac.  394,  61  Am.  St.  Rep.  511 ;  Mutchmor  v.  McCarty,  149  Oal.  603, 
87  Pac.  85.  But  a  recent  case  takes  the  peculiar  position  that  any  lode 
which  will  support  a  location  and  was  known  to  be  such  is  a  "known  lode," 
within  the  placer  patent  exception.  Noyes  v.  Clifford  (Mont.)  94  Pac.  842. 


262  LOCATION   OF   PLACERS.  (Ch.  15 

lode  claimant  to  establish  by  clear  and  convincing  testimony  that  the 
vein  or  veins  which  he  claims  are  exempted  from  the  placer  applica- 
tion by  operation  of  law  are  of  the  character  which  will  render  them 
known  veins  as  above  defined."  59  And  the  court  in  the  case  just 
quoted  from  added:  "There  may  be  a  vein  within  this  tract  which 
shows  mineral  in  appreciable  quantities,  but  it  does  not  appear  that 
it  is  of  such  quantity  or  quality  as  would  justify  expenditures  for 
the  purpose  of  extracting  it."  60 

For  that  reason  an  allegation  that  lands  "never  contained,  and  do 
not  now  contain,  .known  minerals  in  lode  deposits  of  any  value  suffi- 
cient to  justify  expense  of  exploitation  or  expenditure  in  the  effort 
to  extract  the  same,"  is  a  statement  of  fact  that  the  lands  are  nonmin- 
eral.61  Where  it  is  proven  that  land  contains  a  lode  of  the  right  size 
and  quality  for  it  to  be  excepted  from  the  placer  patent  if  it  was  known 
to  exist,  then  it  is  a  known  vein,  within  the  intent  of  the  statute,  if 
prior  to  the  location  of  the  placer  a  valid  lode  location  was  made  on 
it  and  the  lode  location  continued  to  exist  as  such  until  after  the 
application  for  placer  patent,  although  personal  knowledge  of  the  vein 
and  of  the  lode  location  may  not  be  possessed  by  the  applicant  for 
placer  patent.62  The  fact,  however,  that  after  a  placer  patent  a  lode 
patent  issues  for  part  of  the  ground  patented  to  the  placer  is  not 
conclusive  evidence  that  the  lode  was  a  known  lode  at  the  time  of  the 
application  for  placer  patent.68  Where  the  lode  has  not  been  located, 

5»  McCONAGHY  v.  DOYLE,  supra ;  MONTANA  CENT.  RY.  CO.  v.  MIG- 
EON,  68  Fed.  811.  See  United  States  v.  Iron  Silver  Min.  Co.,  128  U.  S. 
673,  9  Sup.  Ct.  195,  32  L.  Ed.  571. 

eo  Id. 

ei  O'Keefe  v.  Cannon  (C.  C.)  52  Fed.  898. 

62  NO  YES  v.  MANTLE,  127  U.  S.  348,  8  Sup.  Ct.  1132,  32  L.  Ed.  168. 

63  IRON  SILVER  MIN.  CO.  v.  CAMPBELL,  135  U.  S.  286,  10  Sup.  Ct.  765, 
34  L.  Ed.  155.     Considering  that  the  land  office  will  not  grant  a  patent  for 
a  lode  within  a  placer  without  a  hearing  on  the  question  of  whether  or  not 
it  was  a  known  lode  within  the  meaning  of  the  statute  (South  Star  Lode,  20 
Land  Dec.  Dep.  Int.  204;    Cape  May  Mining  &  Leasing  Go.  v.  Wallace,  27 
Land  Dec.  Dep.  Int.  676),  this  case  allows  the  placer  patentee  to  go  behind 
the  findings  of  fact  of  the  land  department  in  the  lode  patent  case.    The 
reason  seems  to  be  that,  unless  the  lode  was  "a  known  lode,"  the  land  de- 
partment has  no  jurisdiction  to  issue  the  lode  patent,  since  the  control  of 
the  government  over  the  title  to  the  placer  land  ceased  when  the  placer  pat- 
ent was   issued.    The   lode  patent,   however,   "may  possibly   be   such  prima 
facie  evidence  of  the  facts  named  as  will  place  the  parties  in  a  position  to 
contest  the  question  [of  the  reservation  of  the  vein  as  a  known  lode  under 
the  law]   in   a  court."     IRON   SILVER   MIN.   CO.  v.   CAMPBELL,   135  U. 
S.  286,  293,  10  Sup.  Ct.  765,  34  L.  Ed.  155.     Of  the  earlier  case  of  DAHL  v. 
RAUNHEIM,  132  U.  S.  260,  10  Sup.  Ct.  74,  33  L.  Ed.  324  and  of  the  case 
of  Butt*  &  B.  Min.  Co.  v.  Sloan,  16  Mont.  97,  40  Pac.  217.  Messrs  Morrison 


§§  75-77)  LODES  WITHIN   PLACERS.  263 

then,  for  it  to  be  a  known  vein  or  lode,  "it  must  either  have  been 
known  to  the  applicant  for  the  placer  patent,  or  known  to  the  com- 
munity generally,  or  else  disclosed  by  workings  and  obvious  to  any' 
one  making  a  reasonable  and  fair  inspection  of  the  premises  for  the 
purpose  of  obtaining  title  from  the  government."  64 

Whether  a  vein  of  sufficient  value  to  justify  working  exists  and 
was  known  to  exist  at  the  time  of  the  application  for  placer  patent  is 
for  the  jury  to  say.  As  the  United  States  Supreme  Court  has  said: 
"It  is,  after  all,  a  question  of  fact  for  the  jury.  It  cannot  be  said,  as 
a  matter  of  law  in  advance,  how  much  of  gold  or  silver  must  be  found 
in  a  vein  before  it  will  justify  exploitation  and  be  properly  called  a 
'known'  vein."  65 

The  mere  fact  that  a  lode  location  was  marked  on  the  ground  and 
location  certificate  recorded,  etc.,  does  not  prove  that  there  really  was 
a  vein  that  was  known  to  exist,66  though  no  doubt  it  will  have  weight 
with  a  jury  in  connection  with  other  facts.  Nor  does  the  discovery  of 
a  lode  200  or  300  feet  outside  of  the  placer  boundaries  create  any 

and  De  Soto  say:  "There  are  expressions  in  both  these  opinions  which,  tak- 
en by  themselves,  would  read  that  the  [placer]  patent  was  conclusive  proof 
that  no  lode  existed;  but  to  so  decide  on  consideration  of  the  whole  case 
was  evidently  not  the  intention  of  the  court."  Morrison's  Mining  Rights  (13th 
Ed.)  227.  And  it  is  well  to  bear  in  mind  the  warning  which  they  give,  namely: 
"The  practical  conclusion  from  this  vexed  state  of  the  title,  arising  from  the 
unwise  reservation  from  a  government  grant  of  a  piece  of  land  with  no 
defined  bounds,  and  even  without  acknowledged  existence,  is  that  a  lode  with- 
in placer  lines  should  assert  itself  by  adverse  against  placer  application 
at  the  outstart,  so  as  to  avoid  subsequent  departmental  inquiry.  And  where 
the  application  is  by  the  lode  claimant  over  a  prior  placer  patent,  the  safe 
course  is  for  the  placer  to  adverse  if  the  facts  exist  upon  which  to  contest 
the  title  of  the  lode  claimant."  Id. 

e*  IRON  SILVER  MIN.  CO.  v.  MIKE  &  STARR  GOLD  &  SILVER.  MIN. 
CO.,  143  U.  S.  394,  402,  403,  430,  12  Sup.  Ct.  543,  36  L.  Ed.  201.  See  Sulli- 
van v.  Iron  Silver  Min.  Co.,  143  U.  S.  431,  12  Sup.  Ct.  555,  36  L.  Ed.  214; 
Montana  Cent.  R.  Co.  v.  Migeon  (C.  C.)  68  Fed.  811;  Brownfield  v.  Bier,  15 
Mont.  403,  39  Pac.  461,  "A  vein  known  to  exist  within  the  boundaries  of  a 
placer  claim  at  the  date  of  the  application  for  patent,  and  not  included  in 
the  application,  may  be  located  by  an  adverse  claimant  after  the  issuance 
of  the  patent;  and  a  vein  is  known  to  exist  within  the  meaning  of  the  stat- 
ute (1)  when  it  is  known  to  the  placer  claimant;  (2)  when  its  existence  is 
generally  known;  (3)  when  any  examination  of  the  ground  sufficient  to  en- 
able the  placer  claimant  to  make  oath  that  it  is  subject  to -location  as  such 
would  necessarily  disclose  the  existence  of  the  vein."  MUTCHMOR  v.  Mc- 
OARTY,  149  Cal.  603,  87  Pac.  85,  88. 

«5  iron  Silver  Min.  Co.  v.  Mike  &  Starr  Gold  &  Silver  Min.  Co.,  143  U.  S. 
394,  404,  405,  430,  12  Sup.  Ct.  543,  36  L.  Ed.  201 ;  Noyes  v.  Clifford  (Mont.) 
94  Pac.  842.  See  Butte  &  B.  Min.  Co.  v.  Sloan,  16  Mont.  97,  40  Pac.  217. 

esBUTTE  &  B.  MIN.  CO.  v.  SLOAN,  supra;  McCONAGHY  v.  DOYLE, 
32  Colo.  92,  75  Pac.  419. 


264  LOCATION  OF  PLACERS.  (Ch.  15 

presumption  of  the  existence  of  a  vein  or  lode  within  the  placer.67 
Even  where  "quite  a  number  of  shafts  sunk  elsewhere  in  the  district 
had  disclosed  horizontal  deposits  of  a  particular  kind  of  ore,  which  it 
was  argued  might  be  merely  parts  of  a  single  vein  of  continuous  exten- 
sion through  all  that  territory,"  and  it  was  commonly  believed  that  a 
blanket  vein  did  underlie  the  whole  territory,  still  as  there  had  been 
no  discovery  in  the  placer  tract,  and  no  tracing  of  the  vein  or  lode 
"adjacent  thereto,"  it  was  held  that  the  common  belief  would  not 
make  knowledge  within  the  meaning  of  the  statute.68 

If  a  vein  is  made  known  by  a  trespassing  prospector,  the  latter 
cannot,  of  course,  locate ; 69  but  the  vein,  if  it  be  of  sufficient  value 
to  do  so,  forthwith  becomes  a  "known  lode,"  with  all  that  the  term 
implies. 

Location  of  Known  Lodes  by  Third  Persons  Prior  to  Application  for 

Placer  Patent. 

There  is  still  room  to  doubt  whether,  as  against  a  placer  locator 
who  does  not  consent  to  a  lode  location,  a  known  lode  in  a  placer  can 
be  located  prior  to  the  application  for  patent  on  the  placer.  Certainly 
a  fair  construction  of  Rev.  St.  U.  S.  §  2333  (U.  S.  Comp.  St.  1901,  p. 
1433),  would  seem  to  show  that  Congress  intended  that  the  placer  owner 
should  have  the  first  right  to  all  lodes  within  the  placer,  and  that  an  elec- 
tion to  take  or  leave  known  lodes  should  not  be  forced  upon  him  prior  to 
the  application  for  patent  of  the  placer.  The  serious  thing  to  be  said 
against  a  construction  of  the  statute  which  would  give  the  placer  own- 
er the  first  right  to  all  lodes  discovered  down  to  the  time  of  application 
for  patent  is  the  practical  one  that  it  would  result  in  too  many  veins 
being  withdrawn  from  exploration  and  purchase.70  Perhaps,  too, 

«7  DAHL  v.  RAUNHEIM,  132  U.  S.  260,  263,  10  Sup.  Ct  74,  33  L.  Ed.  324. 
Compare  Michael  v.  Mills,  22  Colo.  439,  45  Pac.  429. 

ss  SULLIVAN  v.  IRON  SILVER  MIN.  CO.,  143  U.  S.  431,  12  Sup.  Ct. 
555,  36  L.  Ed.  214. 

69  CLIPPER  MIN.  CO.  v.  ELI  MINING  &  LAND  CO.,  194  U.  S.  220,  24 
Sup.  Ct.  632,  48  L.  Ed.  944.     In  REYNOLDS  v.  IRON  SILVER  MIN.  CO., 
116  U.  S.  687,  6  Sup.  Ct.  601,  29  L.  Ed.  774,  it  was  held  that  placer  patentees 
could  not   maintain   ejectment  against  adjoining   lode   claimants  who  were 
following  the  vein  on  its  dip  outside  that  part  of  the  dip  belonging  to  them, 
because  included  within  their  side  lines,  which  for  extralateral  right  pur- 
poses were  the  end  lines,   as  extended.    The  part  of  the  dip  beneath  the 
placer  was  a  known  lode  in  a  placer,  and  so  did  not  belong  to  the  placer 
patentee,  and  it  was  a  part  to  which  the  lode  claimants  had  no  right,  since 
it  was  beyond  their  extralateral  right  boundaries ;    but  since  plaintiff  could 
recover  only  on  the  strength  of  his  own  title,  and  not  on  the  weakness  of  de- 
fendant's title,  the  court  thought  that  the  facts  above  did  not  justify  a  re- 
covery.   But  see  infra,  pp.  408,  409. 

70  See  Aurora  Lode  v.  Bulger  Hill  &  Nugget  Gulch  Placer,  23  Land  Dec. 
Dep.  Int.  95,  102.  , 


£§  75-77)  LODES   WITHIN    PLACERS.  265 

fraudulent  placer  locations  might  be  made;  but  those  could  be  at- 
tacked on  that  ground  and  may  be  disregarded. 

The  practical  reason  has  appealed  to  the  land  department,  which 
has  announced  that  a  placer  location  does  not  operate  to  give  title  or 
right  of  possession  to  veins  or  lodes  within  its  limits,  or  preclude  the 
right  of  discovery  and  location  thereof  by  others.71  The  same  rea- 
son has  also  appealed  to  the  Colorado  Supreme  Court,  which  in  the 
following  language,  that  was  dicta,  since  the  court  was  dealing  with 
the  case  of  a  placer  that  had  been  patented  without  the  patentee  asking 
for  known  lodes,  favored  the  view  of  the  land  department:  "On  the 
other  hand,  those  provisions  of  the  statute  that  give  the  locator  of  a 
placer  the  right  to  locate  and  patent  all  other  forms  of  mineral  de- 
posits included  within  the  surface  boundaries  of  his  claim  expressly 
excepts  therefrom  veins  of  quartz  or  other  rock  in  place,  known  to 
exist  within  its  limits.  Rev.  St.  U.  S.  §§  2329,  2333  (U.  S.  Comp.  St. 
1901,  pp.  1432,  1433).  Such  lodes,  therefore,  are  not  the  subject  of  a 
placer  grant,  and  a  placer  location  does  not  operate  to  confer  the  title 
or  possession  thereof  upon  the  placer  claimant,  or  withdraw  them 
from  subsequent  location  by  others.  In  other  words,  the  placer  loca- 
tion gives  a  qualified  possession  of  the  ground  located  ;  that  is  to 
say,  it  confers  upon  the  owner  the  exclusive  right  of  possession  of  the 
surface  area  for  all  purposes  incident  to  the  use  and  operation  of  the 
same  as  a  placer  mining  claim,  and  all  unknown  lodes  or  veins,  but  does 
not  give  right  of  possession  to  known  lodes  or  veins  within  its  limits. 
The  right  to  the  possession  of  such  lodes  or  veins  can  be  acquired  only 
by  locating  them  as  lode  claims."  72 

The  citation  of  section  2329,  Rev.  St.  U.  S.,  is  immaterial  ;  for  that 
section  simply  defines  placers  as  including  everything  except  lodes. 
Unknown  lodes  concededly  pass  by  placer  patents,  however,  and  it  is 
perfectly  rational  to  say  that  they  become  part  of  the  placer  upon  its 
location.  Indeed,  in  Clipper  Min.  Co.  v.  Eli  Mining  &  Land  Co.,73 
the  Supreme  Court  of  Colorado  so  recognized  ;  for,  while  stating  as  a 
dictum  that  .known  lodes  in  placer  unpatented  claims  were  subject  to 
location  by  prospectors,  it  said  that,  if  the  lodes  were  unknown  at  the 
time  of  prospecting,  "the  placer  owner  was  entitled  to  their  exclusive 
possession,  and  entry  upon  them  by  others  constituted  a  trespass,  and 
could  not  initiate  title."  This  recognizes  a  right  in  the  placer  locator 
to  the  veins  as  well  as  the  surface,  a  right  which  may,  of  course, 
later  be  divested.  Lodes  known  to  exist  when  the  placer  is  located 


72  Mt.  Rosa  Mining,  Milling  &  Land  Co.  v.  Palmer,  26  Colo.  56,  56  Pac. 
176,  50  L.  R.  A.  289,  77  Am.  St.  Rep.  245. 

73  29  Colo.  377,  386,  68  Pac.  286,  64  L.  R.  A.  209,  93  Am.  St  Rep.  89. 


266  LOCATION  OF  PLACERS.  (Ch.  15 

never  become  part  of  the  placer,  as  that  would  be  a  fraud  on  the 
government;  but  why  do  not  lodes  not  then  known  to  exist  become 
part  of  the  location,  with  the  qualification  that,  if  their  presence  be- 
comes known  before  application  for  patent,  the  placer  claimant  must 
either  ask  to  patent  them,  when  he  applies  for  placer  patent,  or  lose 
them?  The  placer  locator  has  a  qualified  possession;  but  is  his  pos- 
session qualified  by  the  right  of  a  third  person  to  locate  a  known 
lode  within  the  limits  of  the  placer?  It  would  seem,  on  principle,  so 
far  as  the  statutes  are  concerned,  to  be  qualified  only  by  the  fact  that 
his  possession  ceases  as  to  a  lode  which  becomes  known  before  he 
applies  .for  placer  patent,  and  which  he  fails  to  ask  to  patent  along  with 
the  placer. 

It  is  curious  that  no  judicial  decision  actually  decides  that  prior  to 
the  placer  claimant's  application  for  placer  patent  a  stranger  may  locate 
within  a  placer  a  lode  unknown  when  the  placer  was  located,  but  now 
known  to  exist,  and  thus  end  the  placer  locator's  right  to  patent  that 
known  lode.  All  the  cases  about  known  lodes  concern  locations  made 
after  placer  patent,  except  Clipper  Min.  Co.  v.  Eli  Mining  &  Land 
Co.,74  which  held  that  a  third  party  cannot  enter  the  lines  of  a  placer 
location  to  prospect  for  lodes,  and  that  if  he  does  so  enter  he  is  a 
trespasser,  and  as  such  cannot  make  a  valid  location  of  any  vein  he 
discovers.  That  case  throws  little  light  on  the  question  here,  as  it 
was  based  primarily  on  the  placer  locator's  right  to  the  surface,  and 
not  at  all  on  his  right  to  the  unknown  lodes.  The  practical  reason 
above  mentioned,  however,  makes  it  reasonably  certain  that  the  courts 
will  allow  a  location  of  a  known  vein  in  a  placer  location,  where  such 
location  can  be  accomplished  peaceably,  and  not  clandestinely,  and 
perhaps  even  where  clandestinely,  if  peaceably.  Force,  of  course,  could 
not  be  used  in  the  making  of  such  a  location,  any  more  than  in  any 
other.  A  placer  claimant  should  not,  however,  be  allowed  to  play  the 
part  of  a  dog  in  a  manger,  and  for  his  own  protection  should  take 
pains  to  locate  any  veins  within  his  placer  that  he  wishes  to  hold. 

Whatever  may  be  true  of  lode  locations  made  in  placer  location 
limits  without  the  consent  of  the  placer  claimant,  it  is  undoubtedly  true 
that  the  owner  of  an  unpatented  placer  claim,  or  another  with  his 
consent,  may  locate  a  lode  claim  within  the  boundaries  of  the  placer 
claim.75  So,  though  a  location  of  previously  unknown  veins  may  not 
be  made  on  his  unpatented  placer  against  his  will,  he  may  waive  the 
trespass,  or  perhaps  be  estopped  to  set  it  up  to  defeat  the  lode  location. 
"Perhaps,  if  the  placer  owner,  with  knowledge  of  what  the  [tres- 

*4  194  U.  S.  220,  24  Sup.  Ct.  632,  48  L.  Ed.  944. 

7  6  McCarthy  v.  Speed,  11  S.  D.  362,  77  N.  W.  590:  Collins  v.  McKay,  36 
Mont  123,  92  Pao.  295 


§§  75-77)  LODES  WITHIN   PLACERS.  267 

passing]  prospectors  are  doing,  takes  no  steps  to  restrain  their  work, 
and  certainly  if  he  acquiesces  in  their  action,  he  cannot,  after  they  have 
discovered  a  vein  or  lode,  assert  right  to  it;  for  generally  a  vein  be- 
longs to  him  who  has  discovered  it,  and  a  locator,  permitting  others  to 
search  within  the  limits  of  his  placer,  ought  not  thereafter  to  appro- 
priate that  which  they  have  discovered  by  such  search."  7* 

The  Location  of  Known  Lodes  in  Patented  Placers. 

But  it  is  with  reference  to  patented  placers  that  the  question  of 
known  lodes  has  arisen  in  practice.  Since  the  statute  provides  that 
the  applicant  for  placer  patent  must  ask  to  patent  known  lodes,  or  else 
the  application  "shall  be  construed  as  a  conclusive  declaration  that 
the  claimant  of  the  placer  claim  has  no  right  of  possession  of  the  vein 
or  lode  claim,"  77  that  statute  must  be  given  full  effect;  and  hence,  un- 
der patents  issued  on  entries  since  May  10,  1872,  though  not  on  those 
before  that  date,78  the  patentee  gets  no  title  to  lodes  known  to  exist 
in  the  placer  at  the  time  of  his  application,  and  they  may  be  located  by 
others.79 

How  to  Locate  Known  Lodes  in  Placers. 

It  remains  only  to  discuss  the  manner  of  locating  a  known  lode 
within  a  placer  and  the  size  of  the  claim.  The  manner  of  locating  is 
just  the  same  as  that  in  the  case  of  any  other  lode;  but  the  width 
of  the  claim  is  less.  No  trespass  must  be  committed  in  making  dis- 
covery and  location,  and  the  location  must  be  made  peaceably,  and 
perhaps  not  clandestinely.  Assuming  that  the  placer  location  is  valid, 
the  subsequent  location  of  a  known  vein  in  the  placer  must  under  the 
statute  be  restricted  to  50  feet  in  width.80  Since  a  placer  patent  con- 

*e  Clipper  Min.  Co.  v.  Eli  Mining  &  Land  Co.,  194  U.  S.  220,  230,  24  Sup. 
Ct.  632,  48  L.  Ed.  944. 

"  Rev.  St.  U.  S.  §  2333  (U.  S.  Comp.  St.  1901,  p.  1433). 

?  s  Cranes  Gulch  Min.  Co.  v.  Scherer,  134  Cal.  350,  66  Pac.  487,  86  Am. 
St.  Rep.  279. 

7  9  Reynolds  v.  Iron  Silver  Min.  Co.,  116  U.  S.  687,  6  Sup.  Ct  601,  29  L. 
Ed.  774;  Iron  Silver  Min.  Co.  v.  Reynolds,  124  U.  S.  374,  8  Sup.  Ct  598, 
31  L.  Ed.  466;  Iron  Silver  Mining  Co.  v.  Mike  &  Starr  Gold  &  Silver  Min. 
Go.,  143  U.  S.  394,  430,  12  Sup.  Ct.  543,  36  L.  Ed.  201;  Sullivan  v.  Iron 
Silver  Min.  Co.,  143  U.  S.  431,  12  Sup.  Ct  555,  36  L.  Ed.  214;  Clary  v.  Haz- 
litt,  67  Cal.  286,  7  Pac.  701;  Noyes  v.  Clifford  (Mont)  94  Pac.  842.  Al- 
though two  adverse  suits  brought  against  a  placer  applicant  by  lode  claim- 
ants were  determined  in  the  placer  applicant's  favor,  that  fact  was  not  deem- 
ed an  adjudication  that  there  was  "no  known  lode"  within  the  conflict  area 
affected  by  those  suits,  as  against  third  parties  who  did  not  claim  under 
the  adversers.  Butte  Land  &  Investment  Co.  v.  Merriman,  32  Mont.  402, 
80  Pac.  675,  108  Am.  St  Rep.  590. 

so  MT.  ROSA  MINING,  MILLING  &  LAND  CO.  v.  PALMER,  26  Colo. 
56,  56  Pac.  176,  50  L,  R.  A.  289,  77  Am.  St  Rep.  245;  Noyes  v.  Clifford 


268 


LOCATION    OF   PLACERS. 


(Ch.  15 


fers  no  title  to  known  lodes  within  its  limits,  one  who  subsequently 
locates  such  lodes  cannot  be  deemed  a  trespasser  within  the  rule  that 
a  trespasser  on  a  lawful  possession  can  acquire  no  rights.81  But  what 
if  he  cannot  get  on  the  50-foot  excepted  strip  without  a  trespass?  Is 
there  any  way  to  locate  a  known  vein  which  cannot  be  shown  to  ap- 
proach any  boundary  line  of  the  placer?  For  such  a  situation  see 
figure  No.  11. 

FIGURE  ISo.lL 


VEIN 


KEYSTONE.  PLACE* 


FiaimeNo.fl. 


LAUGHING  WATE.R  PLACER 
<f 


HAPPY  DAV  LOOE  CM/M 


If  in  figure  No.  11  the  placer  patentee  posts  a  notice  to  all  pros- 
pectors to  keep  off  his  placer,  it  is  difficult  to  see  how  a  valid  location 
of  the  vein  can  be  made  without  a  trespass.  In  Figure  No.  12  how- 
ever, the  Happy  Day  claim,  based,  on  a  discovery  outside  of  the  placer, 
is  valid  for  the  full  claim  width  of  600  feet  or  less  claimed  outside 
the  placer  and  for  50  feet  in  width  claimed  in  the  placer  on  the 

(Mont.)  94  Pac.  842.  Mr.  Lindley  points  out  that  the  record  in  the  case  of 
Noyes  v.  Mantle,  127  U.  S.  348,  8  Sup.  Ot  1132,  32  L.  Ed.  168,  as  filed, 
shows  that  the  lode  location  in  that  case  preceded  the  placer,  and  that  there- 
fore the  court  rightly  held  that  the  lode  location  was  entitled  to  be  of  the 
regulation  lode  location  size.  See  1  Lindley  on  Mines  (2d  Ed.)  p.  748. 

si  MT.  ROSA  MINING,  MILLING  &  LAND  CO.  v.  PALMER,  26  Colo.  56, 
56  Pac.  176,  50  L.  R.  A.  289,  77  Am.  St.  Rep.  245;  MUTCHMOR  v.  Mc- 
CARTY,  149  Cal.  603,  87  Pac.  85;  Noyes  v.  Clifford  (Mont.)  94  Pac.  842. 


§§  75-77)  LODES   WITHIN   PLACERS.  269 

i  "known  lode"  not  patented  as  such  to  the  placer  owner.  In  that  figure 
'  the  boundaries  of  the  Happy  Day  lode  claim  would  be  beginning  at 
point  No.  1,  thence  to  point  No.  2,  thence  to  point  No.  3,  thence  to 
point  No.  4,  thence  to  point  No.  5,  thence  to  point  No.  6,  thence  to 
point  No.  7,  thence  to  point  No.  8  and  thence  to  point  No.  1,  the  place 
of  beginning.  The  Happy  Day  lode  claim,  thus  located,  can  extend 
of  course,  only  1,500  feet  in  length. 


270  ANNUAL  LABOR   OK  IMPROVEMENTS  REQUIREMENTS.      (Ch.  16 

CHAPTER  XVI. 
THE  ANNUAL  LABOR  OR  IMPROVEMENTS  REQUIREMENTS. 

78.  Claims  Subject  to  Annual  Labor  Requirement. 

79.  What  is  Annual  Labor. 

80-81.  Place  of  Performance  and  Kind  of  Annual  Labor. 

82.  Amount  of  Annual  Labor. 

83.  Excuses  for  Annual  Labor. 

84.  Proof  of  Annual  Labor. 

85.  Annual  Labor  Pending  Patent  Proceedings. 
86-88.  Resumption  of  Work. 

89-90.    Forfeiture  to  Co-Owner. 

CLAIMS  SUBJECT  TO  ANNUAL  LABOR  REQUIREMENT. 

78.   Annual  labor  is  held  to  be  required  on  placer  claims  as  well  as 
on  lode  claims.      It  is  required  only  on  unpatented  claims. 

The  federal  statute  attaches  to  a  lode  location  an  express  require- 
ment that  each  year  following  the  location  and  prior  to  the  proper 
stage  in  patent  proceedings  a  certain  amount  of  labor  shall  be  per- 
formed upon  the  claim  or  improvements  be  made  upon  it.  By  a 
process  of  judicial  oversight,  or  perhaps  by  traditional  error,  it  has 
become  settled  in  several  states  that  annual  labor  must  be  performed 
on  placers  as  well  as  on  lodes;1  and  the  doctrine  has  the  support  of 
a  dictum  of  the  Supreme  Court  of  the  United  States.2  The  land  de- 
partment has  reversed  its  previous  holding  to  the  contrary  in  favor  of 
the  rule  "that  the  annual  expenditure  to  the  amount  of  $100  required 
by  section  2324,  Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901,  p.  1426),  must 
be  made  upon  placer  claims  as  well  as  lode  claims."  8  The  result  is 
that,  while  probably  the  act  of  1872  did  not  contemplate  annual  labor 
on  anything  but  lode  claims,  the  cases  requiring  it  upon  placers  will 
probably  always  be  followed.4  Mr.  L,indley,  indeed,  argues  that  they  are 

1  CARNEY  v.  ARIZONA  G.   M.  CO.,  65  Cal.  40,  2  Pac.  734;    Morgan  v. 
Tillottson,  73  Cal.  520,  15  Pac.  88 ;    Sweet  v.  Webber,  7  Colo.  443,  4  Pac.  752. 
See,  also,  Chapman  v.  Toy  Long,  4  Sawy.  (U.   S.)  28,  Fed.  Gas.  No.  2,610; 
Gird  v.  California  Oil  Co.  (C.  C.)  60  Fed.  531.     Separate  work  need  not  be 
performed  on  each  20  acres  of  a  160-acre  tract,  however.     McDonald  v.  Mon- 
tana Wood  Co.,  14  Mont.  88,  35  Pac.  668,  43  Am.  St.  Rep.  616. 

2  Jackson  v.  Roby,  109  U.  S.  440,  3  Sup.  Ct  301,  27  L.  Ed.  990.     See  St 
Louis  Smelting  &  Refining  Co.  v.  Kemp,  104  U.  S.  636,  26  L.  Ed.  875. 

a  Land  Office  Regulations,  rule  25.     See  Circular,  8  Land  Dec.  Dep.  Int.  505. 

*  In  the  short  act  of  February  12,  1903,  passed  to  change  a  land  department 

ruling  which  required  annual  labor  on  each  oil  location,  even  though  sev- 


§  79)  WHAT  IS   ANNUAL   LABOR  271 

right,  because  by  section  2329,  Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901,  p. 
1432),  "claims  usually  called  'placers'  *  *  *  shall  be  subject  to 
entry  and  patent,  under  like  circumstances  and  conditions,  and  upon 
similar  proceedings,  as  are  provided  for  vein  or  lode  claims;"  but 
it  does  not  seem  that  the  language  of  that  section  means  anything 
more  than  that  $500  worth  of  labor  must  be  expended  or  improve- 
ments made  on  placers  before  they  can  be  patented.  Its  terms  may  be 
fully  met  without  the  doing  of  annual  labor.  By  the  settled  interpreta- 
tion of  the  statutes,  however,  annual  labor  on  placers  is  required. 


WHAT  IS  ANNUAL  LABOR. 

79.  Animal  labor  is  otherwise  known  as  "assessment  work"  and  "re- 
presentation work,**  and  these  terms  cover  the  annual  ex- 
penditure in  labor  or  improvements  required  to  prevent  the 
forfeiture  of  an  nnpatented  mining  claim.  Annual  labor  is 
required  for  each  year,  beginning  with  the  1st  of  January 
succeeding  the  date  of  location  of  the  claim.  The  federal 
statute  requires  the  expenditure  of  at  least  $1OO  a  year  in  la- 
bor or  improvements  •where  the  claim  has  been,  located  since 
the  act  of  1872. 

Annual  labor  is  sometimes  known  as  "assessment  work"  and  some- 
times as  "representation  work."  Such  labor  was  required  by  district 
rules  and  regulations  prior  to  the  federal  legislation,  though  such  rules 
more  often  required  monthly  or  quarterly  labor.  The  reason  for  the 
miners'  rules  and  regulations  as  to  labor  is  thus  stated :  "It  was  soon 
discovered  that  the  same  person  would  mark  out  many  claims  of  dis- 
covery and  then  leave  them  for  an  indefinite  length  of  time,  without 
further  -  development  and  without  actual  possession,  and  seek  in  this 
manner  to  exclude  others  from  availing  themselves  of  the  abandoned 
mine.  To  remedy  this  evil  a  mining  regulation  was  adopted  that 
some  work  should  be  done  on  each  claim  in  every  year  or  it  would 
be  treated  as  abandoned."  5  By  the  lode  mining  act  of  1866  and  the 
placer  act  of  1870  no  attempt  was  made  to  legislate  about  annual 
labor.  It  was  in  the  act  of  1872,  therefore,  that  the  first  federal  legis- 
lation on  the  subject  was  enacted,  and  by  that  act  two  different  re- 
quirements were  made,  depending  on  whether  the  claims  were  located 
before  or  located  after  the  passage  of  the  act. 

eral  constituted  a  group,  Congress  recognizes  annual  labor  as  a  requisite  in 
oil  placer  locations.  Act  Feb.  12,  1903,  c.  548,  32  Stat.  825  (U.  S.  Comp.  St. 
Supp.  1907,  p.  478). 

5  Chambers  v.  Harrington,  111  U.  S.  350,  353,  4  Sup.  Ct.  428,  28  L.  Ed. 
452.  Annual  labor  is  required  of  the  locator  to  test  his  good  faith.  McCUL- 
LOCH  v.  MURPHY  (C.  C.)  125  Fed.  147. 


272  ANNUAL  LABOR   OR  IMPROVEMENTS   REQUIREMENTS.       (Ch.  16 

Annual  Labor  Requirement  on  Claims  Located  Prior  to  the  Act  of 
1872. 

With  regard  to  previously  located  claims  the  act  provided  that  "$10 
worth  of  labor  shall  be  performed  or  improvements  made  each  year 
for  each  100  feet  in  length  along  the  vein  until  a  patent  shall  have 
been  issued  therefor;  but  where  such  claims  are  held  in  common,  such 
expenditure  may  be  made  upon  any  one  claim."  6  It  is  apparent  that 
"each  year"  means  here  each  year  after  the  passage  of  the  act,  and 
that  no  expenditure  prior  to  the  passage  of  the  act  could  count.7  That 
act  as  it  stood  would  have  required  the  first  annual  labor  to  be  done 
by  May  10,  1873;  but  by  several  amendments  it  was  finally  provided 
that  the  first  annual  labor  on  such  claims  was  to  be  performed  or  im- 
provements made  by  January  1,  1875. 8 

As  Mr.  L/indley9  and  Messrs.  Morrison  and  De  Soto10  agree  that 
very  few  claims  located  prior  to  May  10,  1872,  remain  in  existence  un- 
patented,  such  claims  either  having  gone  to  patent,  or  been  relocated, 
or  else  having  been  entirely  abandoned,  the  subject  of  annual  labor  on 
such  claims  may  be  dismissed  with  the  following  practical  advice  by 
Messrs.  Morrison  and  De  Soto:  "Where  the  lode  consists  of  un- 
divided claims  of  100  or  200  feet  each,  as  in  the  case  of  most  locations 
made  before  May  10,  1872,  any  one  or  more  claims  may  be  saved 
by  the  expenditure  of  $10  worth  of  labor  to  each  100  feet  which  the 
owner  desires  to  segregate  and  hold,  leaving  the  remainder  to  for- 
feiture, or,  when  the  series  of  claims  are  held  in  common,  the  full 
amount  may  be  expended  on  any  one  claim,  whether  they  were  orig- 
inally recorded  as  joint  or  as  several  locations ;  but,  in  all  cases  where 
less  than  the  amount  required  to  hold  the  entire  lode  is  expended,  the 
owner,  in  his  proof  of  labor,  should  state  the  work  as  done  for  the 
purpose  of  holding  only  so  many  feet,  designating  where  they  lie  upon 
the  lode."  " 

Annual  Labor  Requirement  on  Claims  Located  after  the  Act  of  1872. 

With  regard  to  claims  located  after  the  act  of  May,  10,  1872,  the 

act  provided  that  "until  a  patent  shall  have  been  issued  therefor,  not 

less  than  $100  worth  of  labor  shall  be  performed  or  improvements  made 

e  Act  May  10,  1872,  c.  152,  §  5,  17  Stat.  92;  Rev.  St.  U.  S.  §  2324  (U.  S. 
Comp.  St.  1901,  p.  1426). 

T  Thompson  v.  Jacobs,  3  Utah,  246,  2  Pac.  714. 

s  Id.  The  compilers  of  the  Revised  Statutes  of  the  United  States  over- 
looked Act  June  6,  1874,  c.  220,  18  Stat.  61.  So,  instead  of  January  1,  1875, 
the  date  printed  in  section  2324,  Rev.  St  U.  S.  (U.  S.  Comp.  St.  1901,  p. 
1426),  appears  as  June  10,  1874. 

»  2  Lindley  on  Mines  (2d.  Ed.)  §  623. 

iio  Morrison's  Mining  Rights  (13th  Ed.)  96.  n  Id. 


§  79)  WHAT  IS   ANNUAL  LABOR.  273 

during  each  year."  12  Because  this  work  was  to  be  done  "on  each  claim 
located  after  the  passage  of  this  act,"  the  favorite  construction  of  the 
act  seems  to  have  been  that  the  first  annual  work  must  be  done  in 
the  year  dating  from  the  location  of  the  claim;  but  the  doubt  was 
set  at  rest  by  the  act  of  January  22,  1880,  which  amended  Rev.  St. 
U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426),  by  providing,  as  to  all 
claims  located  since  May  10,  1872,  that  the  annual  labor  should  "com- 
mence on  the  1st  day  of  January  succeeding  the  date  of  location  of 
such  claim."  13  While  this  statute  did  not  act  retrospectively,  so  as  to 
save  a  claim  from  a  forfeiture  incurred  before  its  passage,1*  nor  so  as 
to  make  a  locator  perform  labor  before  the  act  went  into  effect.15 
nor  so  as  to  allow  credit  for  such  prior  labor,16  it  did  make  the  calendar 
year  the  period  for  the  performance  of  labor  on  all  claims  located 
after  May  10,  1872.17  "The  object  of  the  amendment  of  the  law  was 
to  render  the  annual  periods  uniform  as  to  all  mining  claims,  and  the 
exemption  of  claims  from  the  performance  of  labor  for  a  portion  of 
a  year  in  certain  cases  was  a  necessary  result  of  the  amendment."  18 
Since  the  passage  of  the  amendment  no  annual  labor  has  been 
required  during  the  year  in  which  the  location  is  made,19  so  far  as  the 
federal  statutes  are  concerned,20  though  a  district  rule  or  state  stat- 
ute, it  seems,  may  require  annual  labor  during  the  location  year.21 
Indeed,  it  has  been  contended  that  a  state  statute  may  not  only  do 
that,  but  may  also  require  more  annual  labor  than  the  federal  stat- 

12 Act  May  10,  1872,  c.  152,  §  5,  17  Stat.  92;    Rev.  St.  U.  S.  §  2324  (U.  S. 
Comp.   St.  1901,  p.  1426). 

is  Act  Jan.  22,  1880,  c.  9,  §  2,  21  Stat.  61  (U.  S.  Comp.  St.  1901,  p.  1427). 

i*  Slavonian  Min.  Co.  v.  Perasich  (C.  C.)  7  Fed.  331. 

is  Hall  v.  Hale,  8  Colo.  351,  8  Pac.  580. 

is  Thompson  v.  Jacobs,  3  Utah,  246,  2  Pac.  714. 

IT  Id.,  where  it  extended  the  period  from  June  8,  to  December  31,  1880. 
See  McGinnis  v.  Egbert,  8  Colo.  41,  51,  5  Pac.  652. 

is  McGinnis  v.  Egbert,  8  Colo.  41,  51,  52,  5  Pac.  652. 

is  There  may  be  a  question  in  what  year  a  location  really  is  made.  "If 
a  discovery  be  made  in  the  latter  part  of  the  year,  but  the  staking  and  record 
are  not  completed  until  some  time  in  the  early  part  of  the  following  year, 
the  latter  year  would  be,  in  our  opinion,  the  location  year,  and  there  could 
be  no  forfeiture  for  neglect  to  do  the  annual  labor  during  that  year;  but  « 
we  find  no  case  where  the  point  has  been  in  terms  decided.  A  location  is 
not  complete  until  all  its  several  parts  have  been  perfected.  McKay  v. 
McDougall,  25  Mont.  258,  64  Pac.  669,  87  Am.  St.  Rep.  395;  Hickey  v.  Ana- 
conda Copper  Min.  Co.,  33  Mont.  46,  81  Pac.  811."  Morrison's  Mining  Rights 
(13th  Ed.)  99. 

20  MALONE  v.  JACKSON,  137  Fed.  878,  70  C.  C.  A.  216. 

21NORTHMORE  v.    SIMMONS,  97   Fed.   386,   38  C.  C.  A.  211.     But  see 
ORIGINAL  CO.  OF  THE  WILLIAMS  &  KELLINGER  v.  WINTHROP  MIN. 
CO.,  60  Cal.  631,  and  1  Lindley  on  Mines  (2d  Ed.)  §  250. 
COST.MIN.L.— 18 


274  ANNUAL   LABOR   OR   IMPROVEMENTS   REQUIREMENTS.       (Ch.  16 

ute  does,  and  may  fix  the  time  for  its  completion  earlier  than  the  end 
of  the  year.  In  Sisson  v.  Sommers  the  Nevada  Supreme  Court  said: 
"The  contention  that,  although  the  Legislature  may  properly  re- 
quire a  greater  amount  of  work  than  Congress  has  prescribed,  it  can- 
not limit  the  time  in  which  to  do  it,  does  not  strike  us  with  any  great 
force  of  reason.  Congress  has  made  the  $100  worth  of  labor  the 
minimum  amount  to  be  done,  and  the  time  named  [the  year]  is  the 
maximum  time  for  the  performance  of  the  work  without  the  risk  of 
forfeiture.  We  think  the  Legislature  may  require  a  reasonable  addi- 
tional amount  of  work  to  be  done  annually,  and  a  reasonable  amount 
of  work  to  complete  the  location  (Erhardt  v.  Boaro,  113  U.  S.  527,  5 
Sup.  Ct.  560,  28  L.  Ed.  1113),  or,  after  location,  a  reasonable  addi- 
tional amount  of  work  within  a  reasonable  time,  less  than  the  time 
named  by  Congress  for  the  annual  expenditure,  as  a  condition  to  the 
continuance  of  the  right  acquired  by  location  of  the  mine."  22 

Annual  labor  is  required  in  order  to  keep  prospectors  from  monopo- 
lizing the  public  mineral  domain,  and  its  performance  is  essential  to 
prevent  the  location  from  being  open  to  relocation.23  While,  in  the 
absence  of  local  legislation  to  the  contrary,  the  claimant  has  the  whole 
of  each  year  to  do  his  $100  worth  of  work  or  put  on  that  amount  of 
improvements,  the  fact  that  he  does  more  work  in  any  one  year  than 
is  required  for  that  year  will  not  enable  him  to  count  it  toward  the 
next  year's  work.  Each  year  can  receive  credit  for  that  year's  work 
only.  Despite  the  fact  that  a  year's  work  came  at  the  first  of  the 
year,  the  work  for  the  succeeding  year  may  come  at  the  end  of  that 
year,24  and  hence  more  than  20  months  may  intervene  between  times 
of  working  on  the  property.  All  that  the  government  cares  is  that 
the  $100  worth  comes  each  year,  or,  if  it  is  omitted  for  any  year,  that 
annual  work  shall  be  resumed  before  a  relocation  is  made  by  third 
parties. 

22  SISSON  v.  SOMMERS,  24  Nev.  379,  388,  55  Pac.  829,  77  Am.  St.  Rep. 
815.     See  NORTHMORE  v.  SIMMONS,  97  Fed.  387,  38  C.  C.  A.  211.     But, 
contra,  as  to  time  of  doing  work,  see  Sweet  v.  Webber,  7  Colo.  443,  4  Pac. 
752,  and  as  to  district  rules,  ORIGINAL  CO.  OF  THE  WILLIAMS  &  KEL- 
LINGER  v.  WINTHROP  MIN.  CO.,  60  Cal.  631,  and  Johnson  v.  McLaughlin, 

*  1  Ariz.  493,  500,  4  Pac.  130. 

23  See  BEALS  v.  CONE,  27  Colo.  473,  62  Pac.  948,  83  Am.  St.  Rep.  92. 

24  See  MILLS  v.  FLETCHER,  100  Cal.  142,  34  Pac.  637;   Belk  v.  Meagher, 
3  Mont.  65. 


§§  80-81)      PLACE   OF   PERFORMANCE   AND  KIND   OF   LABOR.  275 


PLACE  OF  PERFORMANCE  AND  KIND  OF  ANNUAL  LABOR. 

80.  The  work  done  as  annual  labor  may  be  done  (1)  within  the  bound- 
aries  of  a  single  claim;  (2)  within  the  boundaries  of  one  or 
more  claims  of  a  group  held  in  common,  if  the  work  done 
is  really  for  the  benefit  of  all;  or  (3)  outside  the  boundaries 
of  the  claim  or  claims  worked,  if  the  work  done  is  really  for 
the  benefit  of  the  claim  or  claims. 

SI.  Work  intended  to  develop  the  claim  will  count  as  annual  labor, 
if  it  is  actually  performed  within  the  boundaries  of  the  claim; 
but  work  done  outside  the  boundaries  cannot  count,  unless  it 
is  found  by  the  jury,  or  the  court  sitting  as  a  jury,  actually 
to  be  of  benefit  to  the  claim. 

The  time  when  annual  labor  must  be  performed  having  been  ascer- 
tained, the  next  question  is  where  it  may  be  performed.  The  federal 
statute  speaks  of  annual  labor  on  each  claim,  meaning  thereby  on  each 
piece  of  located  mineral  ground;  and  the  intent  of  the  statute  seems 
to  have  been  that  $100  worth  of  work  must  be  performed,  or  that 
amount  of  improvements  made  *  on  each  location,  unless  several  claims 
are  held  in  common,  when  the  work  may  be  done  on  one  for  all,  or 
unless  a  tunnel  is  run  to  develop  several  lode  locations.  But  a  broader 
interpretation  has  been  given  to  the  act.  A  claim  or  location  within  the 
act  about  annual  labor  consists  of  a  lode  mining  claim  or  of  a  placer 
located  by  one  or  more  persons;  and  under  the  broad  interpretation 
of  the  statute,  the  work  claimed  as  annual  labor  may  be  done:  (1) 
Within  the  boundaries  of  a  single  claim;  (2)  within  the  boundaries 
of  one  or  more  claims  of  a  group ;  (3)  outside  of  the  boundaries  of  a 
single  claim,  or  of  the  various  claims  of  a  group. 

Work  Done  within  the  Claim's  Boundaries. 

Work  done  within  the  boundaries  of  a  single  location,  whether  up- 
on the  surface  or  below,  if  only  done  so  as  clearly  to  be  intended  to 
develop  the  claim,  will  satisfy  the  statute,  and  the  court  will  not  be 
allowed  to  question  the  wisdom  and  expediency  of  the  method  em- 
ployed.25 Excavating  on  the  vein,  and  putting  upon  the  claim  ma- 

*  "The  word  'improvement,'  as  thus  used,  evidently  means  such  an  arti- 
ficial change  of  the  physical  conditions  of  the  earth  in,  upon,  or  so  reason- 
ably near  a  mining  claim  as  to  evidence  a  design  to  discover  mineral  there- 
on or  to  facilitate  its  extraction,  and  in  all  cases  the  alteration  must  rea- 
sonably be  permanent  in  character."  Fredricks  v.  Klauser  (Or.)  96  Pac. 
679,  682. 

25  MANN  v.  BUDLONG,  129  Cal.  577,  62  Pac.  120;  McGarrity  v.  Byington, 
12  Cal.  426;  Mt.  Diablo  Mill  &  Mining  Co.  v.  Callison,  5  Sawy.  (U.  S.)  439, 
Fed.  Gas.  No.  9,886;  Stone  v.  Bumpus,  46  Cal.  218;  Gear  v.  Ford,  4  Cal. 
App.  556,  88  Pac.  600.  Extracting  ore  without  doing  development  work  i8 
sufficient.  Wailes  v.  Davies  (C.  C.)  158  Fed.  667. 


276  ANNUAL  LABOR   OR  IMPROVEMENTS   REQUIREMENTS.       (Ch.  16 

chinery  and  other  works  for  mining,  will  serve  to  satisfy  the  statute.26 
It  has  even  been  held  that  work  done  on  placer  claims  to  reveal 
whether  or  not  there  are  lodes  within  them  is  annual  labor,27  though 
that  may  well  be  doubted,  in  view  of  the  decision  that  picking  down 
from  a  vein  samples  of  rock  and  assaying  them  in  an  attempt  to  find 
pay  ore  will  not  count  as  annual  labor.28  It  has  been  said  that  work 
done  within  the  common-law  boundaries  of  the  claim,  though  perform- 
ed on  a  lode  apexing  outside,  is  still  work  on  the  claim  within  the 
meaning  of  the  federal  statute;29  but  that  may  well  be  doubted.  A 
building  will  be  an  improvement,  so  as  to  count  toward  the  $100  ex- 
penditure, only  if  it  is,  and  is  intended  to  be,  of  benefit  to  the  claim.30 
Services  of  superintendence  will  count  as  annual  labor;31  but  it  is 
questionable  how  far,  if  at  all,  the  employment  of  a  watchman  for  an 
idle  mine  will  count.  The  earlier  cases  said  that  the  watchman's  serv- 
ices will  count  as  annual  labor;32  but  the  late  California  cases  and 
an  Oregon  case  throw  doubt  upon  the  proposition.33  In  Hough  v. 
Hunt  the  court  says  that  the  cases  must  be  rare  indeed  where  employ- 
ing a  watchman  will  serve  for  annual  labor,  because  only  occasionally 
can  such  expenditures  justly  be  said  to  have  been  made  "in  prospect- 
ing or  working  the  mine.  There  may  be  cases  where  work  has  been 
temporarily  suspended,  and  there  are  structures  which  are  likely  to 
be  lost  if  not  cared  for,  and  it  appears 'that  the  structures  will  be  re- 
quired when  work  is  resumed,  and  that  the  parties  do  intend  to  re- 
sume work,  in  which  money  expended  to  preserve  the  structures  will 
be  on  the  same  basis  as  money  expended  to  create  them  anew.  But 
this  could  not  go  on  indefinitely.  As  soon  as  it  should  appear  that 
this  was  done  merely  to  comply  with  the  law  and  to  hold  the  prop- 
erty, without  any  intent  to  make  use  of  such  structure  within  a  reason- 
able period,  such  expenditure  could  not  be  said  to  have  been  made 

26  Lockhart  v.  Rollins,  2  Idaho,  540,  21  Pac.  413.     But  see  Packer  v.  Hea- 
ton,  9  Cal.  568. 

27  United  States  v.  Iron  Silver  Min.  Co.  (C.  C.)  24  Fed.  568. 

28  BISHOP  v.  BAISLEY,  28  Or.  119,  41  Pac.  936. 

29  Mt  Diablo  Mill  &  Mining  Co.  v.  Callison,  5  Sawy.  (U.  S.)  439,  Fed.  Gas. 
No.  9,886. 

so  BRYAN  v.  McCAIG,  10  Colo.  309,  15  Pac.  413.  See  Remmington  v. 
Baudit,  6  Mont.  138,  9  Pac.  819,  and  see  note  *,  supra. 

si  Rara  Avis  G.  &  S.  M.  Co.  v.  Bouscher,  9  Colo.  385,  12  Pac.  433. 

s  2  Lockhart  v.  Rollins,  2  Idaho,  540,  21  Pac.  413;  Altoona  Quicksilver 
Min.  Co.  v.  Integral  Quicksilver  Min.  Co.,  114  Cal.  100,  45  Pac.  1047;  Tripp 
v.  Dumphy,  28  Land  Dec.  Dep.  Int.  14. 

33  HOUGH  v.  HUNT,  138  Cal.  142,  70  Pac.  1059,  94  Am.  St.  Rep.  17;  Gear 
v.  Ford,  4  Cal.  App.  556,  88  Pac.  600;  Fredrkks  v.  Klauser  (Or.)  96  Pac. 
679.  Compare  New  England  &  Coalinga  Oil  Co.  v.  Congdon  (Cal.)  92  Pac. 
180;  Williams  v.  Hawley,  144  Cal.  97,  77  Pac.  762. 


§§  80-81)   PLACE  OF  PERFORMANCE  AND  KIND  OF  LABOR.       277 

in  work  upon  the  mine.  Much  less  could  the  mine  owner  bring  picks, 
shovels,  and  things  of  that  kind  upon  the  claim,  and  have  some  one  to 
watch  them  to  prevent  their  being  stolen,  and  have  such  cost  of  watch- 
ing considered  as  work  upon  the  mine."  34 

Work  done  by  a  stockholder  of  a  corporation  for  the  benefit  of  the 
company  will  count  as  annual  labor .f  The  cost  of  sharpening  tools  on 
the  premises  may  be  a  legitimate  item  of  expenditure,  or  may  not,  ac- 
cording to  circumstances,35  and  so  may  the  expense  of  unwatering  a 
mine; 36  but  the  expense  of  taking  tools,  lumber,  etc.,  to  a  mine,  and 
then  taking  them  away  after  slight  or  no  use,  will  not  count.37  So 
depositing  waste  on  a  claim  from  an  adjoining  claim  is  not  annual 
labor  on  the  claim  used  as  a  dump,  nor  is  the  building  of  a  flume 
over  such  claim  for  the  carriage  of  such  waste,  for  they  clearly 
do  not  tend  to  develop  that  claim.38  For  the  same  reason  bath 
houses  and  appurtenances  at  salt  springs  are  not  mining  improve- 
ments.39 The  same  is  true  of  storing  water  on  a  placer  to  be  us- 
ed elsewhere.40  So  work  done  by  third  parties  for  themselves 
and  then  purchased  by  the  claimant,  after  suit  has  been  brought 
to  recover  possession  from  the  claimant,  cannot  inure  to  the  benefit 
of  such  claim,  for  annual  labor  purposes,41  though  work  performed 
by  the  claimant's  grantor,  of  course,  will ;  42  and  so  will  work  done  by 
a  corporation,  the  superintendent  of  which  has  a  contract  to  purchase 
the  claim,  if  the  superintendent  can  be  considered  to  hold  the  con- 
tract in  trust  for  the  company.43  While  the  value  of  powder,  fuse, 
candles,  etc.,  used  in  development  work,  the  value  of  rails  laid  on 

s *  Hough  v.  Hunt,  138  Cal.  142,  70  Pac.  1059,  94  Am.  St.  Rep.  17;  Fred- 
ricks  v.  Klauser  (Or.)  96  Pac.  679.  That  payment  to  a  watchman  will  serve 
as  annual  labor  expenditure,  where  the  services  of  the  watchman  are  rea- 
sonably necessary  to  guard  ore  and  valuable  improvements  on  the  claim 
against  theft  and  injury,  is  held  in  Kinsley  v.  New  Vulture  Min.  Co.  (Ariz.) 
90  Pac.  438. 

t  Wailes  v.  Davies  (C.  C.)  158  Fed.  667. 

35HIRSCHLER  v.  McKENDRICKS,  16  Mont.  211,  40  Pac.  290. 

36  See  Emerson  v.  McWhirter,  133  Cal.  510,  65  Pac.  1036. 

ST  HONAKER  v.  MARTIN,  11  Mont.  91,  27  Pac.  397. 

3  *, Jackson  v.  Roby,  109  U.  S.  440,  3  Sup.  Ct.  301,  27  L.  Ed.  990. 

3»  Lovely  Placer  Claim,  35  Land  Dec.  Dep.  Int.  426. 

40  Robert  S.  Hale,  3  Land  Dec.  Dep.  Int.  536;    William  S.  Chessman,  2 
Land  Dec.  Dep.   Int.  774. 

41  LITTLE   GUNNEL  GOLD  MIN.   CO.   v.   KIMBER,  1  Morr.  Min.  Rep. 
536,  Fed.  Cas.  No.  8,402. 

42  Tarn  v.  Story,  21  Land  Dec.  Dep.  Int.  440. 

43  GODFREY  v.  FAUST,  18  S.  IX  567,  101  N.  W.  718.     So,  it  seems,  will 
work  intended  as  a  present.    Anderson  v.  Caughey,  3  Cal.  App.  22,  84  Pac. 
223.    Where  the  same  ground  has  been  properly  located,  and  then  an  invalid 
relocation  made  by  the  same  locator,  work  done  by  him  will  count  as  annual 


278  ANNUAL   LABOR   OB   IMPROVEMENTS   REQUIREMENTS.       (Ch.  16 

ties  in  a  tunnel  on  the  claim,  and  the  reasonable  value  of  meals  fur- 
nished the  miners  as  part  of  their  wages,  will  count  as  annual  ex- 
penditure, it  seems  that  the  value  of  work  horses,  tools,  bedding, 
kitchen  utensils,  and  cutlery  will  not,  though  the  reasonable  value  of 
the  use  of  such  things  may  be  counted.J 

Work  Done  on  One  Claim  for  a  Group. 

But  it  may  happen  that  a  group  of  claims  may  best  be  worked  through 
work  done  on  one  of  them,  and  the  statute  expressly  permits  that  to 
be  done  by  providing  that,  "where  such  claims  are  held  in  common, 
such  expenditure  may  be  upon  any  one  claim."  44  Even  in  such  case, 
however,  the  work  on  one  claim  cannot  count  as  work  on  another 
claim,  or  the  group,  unless  the  work  done  is  really  for  the  benefit  of 
that  other  as  one  of  the  group.45  "Labor  and  improvements,  within 
the  meaning  of  the  statute,  are  deemed  to  have  been  had  on  a  mining 
claim,  whether  it  consists  of  one  location  or  several,  when  the  labor  is 
performed  or  the  improvements  are  made  for  its  development — that  is, 
to  facilitate  the  extraction  of  the  metals  it  may  contain — though  in 
fact  such  labor  and  improvements  may  be  on  ground  which  originally 
constituted  only  one  of  the  locations,  as  in  sinking  a  shaft,  or  be  at  a 
distance  from  the  claim  itself,  as  where  the  labor  is  performed  for 
the  turning  of  a  stream  or  the  introduction  of  water,  or  where  the  im- 
provement consists  in  the  construction  of  a  flume  to  carry  off  the 
debris  or  waste  material.  It  would  be  absurd  to  require  a  shaft  to  be 
sunk  on  each  location  in  a  consolidated  claim,  when  one  shaft  would 
suffice  for  all  the  locations."  46 

The  question  of  whether  the  work  done  on  one  claim  is  really  for 
the  benefit  of  the  rest  of  the  group  is  for. the  jury.47  The  burden 
of  proof  is  on  the  owner  to  show  that  the  work  done  or  improvment 
made  does  in  fact  develop  the  claims  as  a  whole.48  The  work  done 
on  the  group  must,  of  course,  aggregate  as  much  as  if  done  on  each 

labor  on   the  valid  location.    Temescal   Oil   Mining  &  Development  Co.   v. 
Salcido,  137  Gal.   211,  69  Pac.   1010. 
JFredricks  v.  Klauser  (Or.)  96  Pac.  679. 

44  Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426). 

4 5  LITTLE   DORRIT   GOLD   MIN.  CO.  v.  ARAPAHOE  GOLD  MIN.   CO., 
30  Colo.  431,  71  Pac.  389 ;    McCormick  v.  Baldwin,  104  Cal.  227,  37  Pac.  903 ; 
Axiom  Min.  Co.  v.  White,  10  S.  D.  198,  72  N.  W.  462;    Justice  Min.  Co.  v. 
Barclay  (C.  C.)  82  Fed.  554;    Fissure  Min.  Co.  v.  Old  Susan  Min.   Co.,  22 
Utah,  438,  63  Pac.  587. 

46  ST.   LOUIS   SMELTING  &   REFINING  CO.   v.   KEMP,   104  U.   S.   636, 
655,  26  L.  Ed.  875;    Klopenstine  v.  Hays,  20  Utah,  45,  57  Pac.  712. 

*7  WILSON  v.  TRIUMPH  CONSOL.  MIN.  CO.,  19  Utah,  66,  56  Pac.  300, 
75  Am.  St.  Rep.  718;  Yreka  Min.  &  Mill.  Co.  v.  Knight,  133  Oal.  544,  65 
Pac.  1091;  Eberle  v.  Carmichael,  8  N.  M.  169,  42  Pac.  95. 

*•  HALL  v.  KEARNY,  18  Colo.  505,  33  Pac.  373 ;    SHERLOCK  v.  LEIGH- 


§§  80-81)   PLACE  OF  PERFORMANCE  AND  KIND  OF  LABOR.       279 

claim  separately,  and  it  seems  that  where  several  contiguous  claims 
held  in  common  are  given  a  common  improvement  the  development 
of  each  is  figured  pro  rata.49  So,  in  a  case  where  the  annual  expend- 
iture on  one  claim  of  a  group  of  four  amounted  only  to  $132,  it  was 
held  that  the  claim  upon  which  the  expenditure  was  made  was  safe 
from  forfeiture,  but  that  the  other  three  claims  were  subject  to  re- 
location.** 

The  statute  speaks  of  claims  held  in  common,  which  means,  of 
course,  common  ownership.  This  does  not  necessarily  mean,  however, 
legal,  as  distinguished  from  equitable,  ownership.  Where  three  lo- 
cations were  made,  each  in  the  name  of  a  different  locator,  under  an 
oral  agreement  that  they  should  be  owned  in  common  by  all  three 
locators,  the  equitable  interest  which  each  locator  had  in  the  other 
locations,  together  with  the  legal  interest  which  he  had  in  the  location 
which  he  perfected,  caused  the  locations  to  be  owned  in  common  within 
the  meaning  of  the  federal  statute.50 

It  has  been  said  that  several  different  locators  may  combine  to 
work  their  separate  locations  together  under  this  statute.  "It  often 
happens  that,  for  the  development  of  a  mine  [lode?]  upon  which  sev- 
eral claims  have  been  located,  expenditures  are  required  exceeding 
the  value  of  a  single  claim,  and  yet  without  such  expenditures  the  claim 
could  not  be  successfully  worked.  In  such  case  it  has  always  been  the 
practice  for  the  owners  of  the  different  locations  to  combine  and  to 
work  them  as  one  general  claim ;  and  expenditures  which  may  be  nec- 
essary for  the  development  of  all  the  claims  may  then  be  made  on  one 
of  them."  81 

The  statute  says  nothing  about  any  necessity  for  the  claims  to  be  con- 
tiguous, in  the  sense  of  having  their  boundaries  touching,52  for  work 
on  one  to  count  for  all.  While  in  several  cases  such  contiguity  is  de- 
clared to  be  essential,53  the  California  case  which  holds  contiguity  not 

TON,  9  Wyo.  297,  63  Pac.  580,  934 ;  Dolles  v.  Hamberg  Consol.  Mines,  23  Land 
Dec.  Dep.  Int.  267;  Copper  Glance  Lode,  29  Land  Dec.  Dep.  Int.  542. 

*»  James  Carretto  and  Other  Lode  Claims,  35  Land  Dec.  Dep.  Int  361 ; 
Aldebaran  Mining  Co.,  36  Land  Dec.  Dep.  Int.  551. 

**Fredricks  v.  Klauser  (Or.)  96  Pac.  679. 

BO  EBERLE  v.  CARMICHAEL,  8  N.  M.  169,  42  Pac.  95.  See  Yarwood  T. 
Johnson,  29  Wash.  643,  70  Pac.  123. 

51  JACKSON  v.  ROBY,  109  U.  S.  440,  445,  3  Sup.  Ct.  301,  27  L.  Ed.  990. 

52  "Contiguous  means  touching  sides,  adjoining,  adjacent.    Two  tracts  of 
land  touching  only  at  a  point  are  not  contiguous."     Hidden  Treasure  Consol. 
Quartz  Mine,  35  Land  Dec.  Dep.   Int  485,  488. 

5  s  GIRD  v.  CALIFORNIA  OIL  CO.  (C.  C.)  60  Fed.  531;  ROYSTON  v. 
MILLER  (C.  C.)  76  Fed.  50,  See  CHAMBERS  v.  HARRINGTON,  111  U.  S. 
350,  353,  4  Sup.  Ct.  428,  28  L.  Ed.  452;  Jupiter  Min.  Co.  v.  Bodie  Consol. 
Min.  Co.  (C.  C.)  11  Fed.  666. 


280  ANNUAL   LABOR   OR   IMPROVEMENTS   REQUIREMENTS.       (Ch.  16 

to  be  necessary  would  seem  to  be  sound.  As  the  court  in  that  case 
said:  "Mines  may  be  conceived  of  as  so  situated  that  the  same  work 
may  be,  and  appear  to  be,  expended  in  opening  or  developing  both 
mines,  although  they  are  not  actually  contiguous."  54 

The  fact  that  the  act  in  regard  to  annual  labor  on  oil  placers  requires 
them  to  be  contiguous  55  should  not  cause  the  same  requirement  to  be 
read  into  the  general  sections  applicable  to  all  kinds  of  claims,  and,  if 
it  has  any  significance,  tends  rather  to  show  that  contiguity  is  essen- 
tial only  in  the  case  of  oil  placers. 

Work  Done  Outside  of  a  Claim  or  of  a  Group  of  Claims. 

While  the  statute  says  that  the  work  shall  be  done  and  improve- 
ments made  on  the  claim,  and  specifically  authorizes  work  outside 
Tx>th  of  the  claim  and  of  the  group  owned  in  common  of  which  the 
<:laim  is  a  part,  only  where  a  tunnel  is  run,56  the  rule  is  well  settled  that 
work  done  outside  of  a  claim,  or  of  a  group  of  claims,  and  not  in  a 
tunnel,  will  count  as  annual  labor  if  it  is  for  the  benefit  of  the  claim. 
"''Work  done  outside  of  the  claim,  or  outside  of  any  claim,  if  done  for 
the  purpose  and  as  a  means  of  prospecting  or  developing  the  claim,  as 
in  the  case  of  tunnels,  drifts,  etc.,  is  as  available  for  holding  the 
claim  as  if  done  within  the  boundaries  of  the  claim  itself."  5T  Even 
work  done  on  a  patented  claim  may  count  as  annual  labor  on  an  un- 
patented  claim.58  The  test  is  whether  the  work  done  has  some  direct 
relation  to  the  claim,  or  is  in  reasonable  proximity  to  it,89  and  actually 
benefits  the  claim  to  the  extent  of  the  $100  required. 

On  the  kind  of  work  outside  of  a  tunnel  which  will  count  there  are 
a  number  of  decisions.  Constructing  a  flume  to  carry  away  waste  from 
the  claim,60  though  not  to  bring  it  to  the  claim,61  and  building  a  road 

54ALTOONA  QUICKSILVER  MIN.  CO.  v.  INTEGRAL  QUICKSILVER 
MIN.  CO.,  114  Cal.  100,  107,  45  Pac.  1047.  In  that' case  there  seems  to  have 
been  a  narrow  strip  of  land  between  the  locations. 

ssAct  Feb.  12,  1903,  c.  548,  32  Stat.  825  (U.  S.  Comp.  St.  Supp.  1907,  p.  478). 

5  6 Act  Feb.  11,  1875,  c.  41,  18  Stat.  315  (U.  S.  Comp.  St.  1901,  p.  1427), 
amendment  to  section  2324,  Rev.  St.  U.  S.  See  Godfrey  v.  Faust  (S.  D.) 
105  N.  W.  460;  Book  v.  Justice  Min.  Co.  (C.  O.)  58  Fed.  106.  Work  on  a 
tunnel  will  count  as  assessment  work,  although  the  claimant  does  not  own 
a  continuous  strip  of  territory  from  the  portal  of  the  tunnel  to  the  bound- 
ary of  the  claim.  HAIN  v.  MATTES,  34  Colo.  345,  83  Pac.  127. 

57  Mt.  Diablo  Mill  &  Mining  Co.  v.  Callison,  5  Sawy.  (U.  S.)  439,  457, 
Fed.  Cas.  No.  9,886;  Book  v.  Justice  Min.  Co.  (C.  C.)  58  Fed.  106.  See 
Packer  v.  Heaton,  9  Cal.  568;  Kramer  v.  Settle,  1  Idaho,  485. 

5  s  HALL  v.  KEARNY,  18  Colo.  505,  33  Pac.  373;  SHERLOCK  v.  LEIGH- 
TON,  9  Wyo.  297,  63  Pac.  580,  934. 

59  McGarrity  v.  Byington,  12  Cal.  426,  432. 

eo  Packer  v.  Heaton,  9  Cal.  568. 

ei  St.  Louis  Smelting  &  Refining  Co.  v.  Kemp,  104  U.  S.  636,  26  L.  Ed. 
875;  Jackson  v.  Roby,  109  U.  S.  440,  3  Sup.  Ct.  301,  27  L.  Ed.  990. 


gg  80-81)   PLACE  OF  PERFORMANCE  AND  KIND  OF  LABOR.       281 

to  the  claim  when  that  is  necessary  to  its  working,62  will  serve  as 
types.  It  must  always  be  remembered  that,  where  work  is  done  out- 
side the  claim  or  group  of  claims,  the  burden  of  proof  is  upon  the  own- 
er to  show  that  the  work  has  actually  benefited  the  claim  the  required 
amount.63  "Where  the  work  is  not  done  within  the  surface  boundaries 
of  the  location,  the  law  undoubtedly  casts  the  burden  upon  the  party 
claiming  to  have  done  the  work,  not  only  to  show  that  the  work  done 
outside  of  such  boundary  was  intended  as  the  annual  assessment  work 
on  the  claim,  but  that  it  was  of  such  a  character  as  that  it  would  in- 
ure to  the  benefit  of  such  claim.  But,  when  such  facts  are  clearly 
established,  then  it  is  wholly  immaterial  whether  the  work  to  ac- 
complish such  purpose  was  performed  off  the  ground  upon  a  patented 
or  unpatented  mining  claim,"  64  or  upon  an  agricultural  claim.65 

Work  in  a  Tunnel  as  Annual  Labor. 

With  reference  to  working  one  or  more  claims  through  a  tunnel 
it  should  be  noted  that  there  are  two  kinds  of  tunnels,  namely:  (1) 
The  statutory  tunnel  site  tunnel ;  and  (2)  the  ordinary  crosscut  tunnel. 
The  statutory  tunnel  site  tunnel  work  may  be  credited  as  assessment 
work  on  claims  owned  by  the  tunnej  site  claimant  and  benefited  there- 
by, even  though  as  a  matter  of  fact  the  right  to  blind  veins  cut  by  said 
tunnel  has  been  lost.66  The  other  kind  of  tunnel  was  probably  a  prop- 
er means  of  doing  assessment  work  prior  to  the  amendment  of  1875, 
made  to  Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426) ;  but 
that  amendment  removes  all  room  for  controversy  over  whether  the 
annual  labor  on  a  claim  or  claims  can  be  performed  by  a  tunnel  run 
to  develop  the  claim  or  claims.67  Not  only  may  the  work  be  performed 
through  or  by  such  a  tunnel,  but  it  seems  plain  that  such  a  tunnel, 
owned  and  worked  in  common  by  several  claim  owners,  whose  claims 


62DOHERTY  v.  MORRIS,  17  Colo.  105,  28  Pac.  85;  Mt.  Diablo  Mill  & 
Mining  Go.  v.  Callison,  5  Sawy.  (U.  S.)  439,  Fed.  Gas.  No.  9,886. 

es  HALL  v.  KEARNY,  18  Colo.  505,  33  Pac.  373;  SHERLOCK  v.  LEIGH- 
TON,  9  Wyo.  297,  63  Pac.  580,  934.  See  DU  PRAT  v.  JAMES,  65  Cal.  555, 
4  Pac.  562.  In  Remmington  v.  Baudit,  6  Mont.  138,  9  Pac.  819,  a  building 
erected  outside  of  the  boundaries  of  the  claim  was  not  allowed  to  count. 

«*  JUSTICE  MIN.  CO.  v.  BARCLAY  (C.  C.)  82  Fed.  554,  560.  In  saying 
that  work  done  outside  the  boundaries  of  the  location  is  done  on  the  claim, 
the  courts  are  giving  a  common-sense  construction  to  the  statute. 

« s  RICHARDS  v.  WOLFLING,  98  Cal.  195,  32  Pac.  971. 

ee  FISSURE  MIN.  CO.  v.  OLD  SUSAN  MIN.  CO.,  22  Utah,  438,  63  Pac. 
587. 

67  Kirk  v.  Clark,  17  Land  Dec.  Dep.  Int.  190.  See  HALL  v.  KEARNY,  18 
Colo.  505,  33  Pac.  373;  SHERLOCK  v.  LEIGHTON,  9  Wyo.  297,  63  Pac. 
580,  934. 


282  ANNUAL  LABOR   OK   IMPROVEMENTS   REQUIREMENTS.       (Ch.  16 

are  to  be  cut  thereby,  can  serve  as  the  assessment  work  on  all  the 
claims,  if  enough  is  done  each  year  to  make  up  $100  for  each  claim.68 


AMOUNT  OF  ANNUAL  LABOR. 

82.  The  requirement  of  $1OO  worth  of  labor  or  improvements  must 
be  met  by  work  or  improvements  reasonably  worth  that 
amount,  and  local  rules  or  statutes  to  the  effect  that  so  many 
days*  labor  shall  be  regarded  as  equivalent  to  $100  worth  of 
labor  must  be  disregarded. 

It  being  conceded  that  $100  worth  of  the  right  kind  of  labor  within 
the  right  time  and  at  the  right  place  is  desired,  the  question  arises 
whether  any  artificial  standard  can  be  fixed  by  state  statute  or  by  dis- 
trict rules  to  measure  the  $100  worth  of  work  by.  In  Penn  v.  Old- 
hauber  a  custom  of  miners  in  a  given  district  that  20  days'  work 
should  constitute  $100  worth  of  work  was  not  allowed  to  be  proved, 
because  "the  value  of  work  done  or  improvement  made  is  to  be  meas- 
ured, not  in  days,  but  in  dollars."  69  The  same  argument  will  render 
invalid  the  Nevada  and  New  Mexico  statutes  of  the  same  kind.70 
It  is  a  question  of  fact  in  each  case  whether  the  work  done  or  im- 
provements made  are  reasonably  worth  $100,  and  it  does  not  matter 
what  the  contract  price  was,  nor  whether  the  value  of  the  claim  was 
enhanced  by  the  work.71  The  contract  price  is,  however,  proper  evi- 
dence, because  it  bears  on  the  good  faith  of  the  claim  owner.72  If 
$100  worth  of  labor  is  actually  performed  for  the  claim  owner,  it 
is  immaterial,  so  far  as  compliance  with  the  annual  labor  statute  is 
concerned,  whether  he  has  paid  for  it,73  though  until  the  claim  owner 

es  JACKSON  v.  ROBY,  109  U.  S.  440,  445,  3  Sup.  Ct.  301,  27  L.  Ed.  990; 
FISSURE  MIN.  CO.  v.  OLD  SUSAN  MIN.  CO.,  22  Utah,  438,  63  Pac.  587. 

«»  PENN  v.  OLDHAUBER,  24  Mont.  287,  61  Pac.  649;  Woody  v.  Bernard, 
69  Ark.  579,  65  S.  W.  100 ;  Wright  v.  Killian,  132  Cal.  56,  64  Pac.  98.  Com- 
pare McKay  v.  Neussler,  148  Fed.  86,  78  C.  C.  A.  154. 

70  See  Sweet  v.  Webber,  7  Colo.  443,  4  Pac.  752. 

71MATTINGLY  v.  LEWISOHN,  13  Mont.  508,  35  Pac.  111.  For  deci- 
sions where  there  was  conflicting  evidence  of  value  of  work,  see  Crown 
Point  Min.  Co.  v.  Crisman,  39  Or.  364,  65  Pac.  87 ;  Wagner  v.  Dorris,  43  Or. 
392,  73  Pac.  318 ;  Wright  v.  Killian,  132  Cal.  56,  64  Pac.  98 ;  Yarwood  v.  John- 
son, 29  Wash.  643,  70  Pac.  123;  Stolp  v.  Treasury  Gold  Min.  Co.,  38  Wash. 
619,  80  Pac.  817 ;  Dibble  v.  Castle  Chief  Gold  Min.  Co.,  9  S.  D.  618,  70  N.  W. 
1055;  McGrath  v.  Bassick,  11  Colo.  528,  19  Pac.  462;  Hirschler  v.  McKen- 
dricks,  16  Mont.  211,  40  Pac.  290. 

72  QUIMBY  v.  BO  YD,  8  Colo.  194,  208,  6  Pac.  462;  Floyd  v.  Montgomery, 
26  Land  Dec.  Dep.  Int.  122;  Whalen  Consol.  Copper  Min.  Co.  v.  Whalen 
(C.  C.)  127  Fed.  611;  McCormick  v.  Parriott,  33  Colo.  382,  80  Pac.  1044. 

T8LOCKHART  v.  ROLLINS,  2  Idaho,  540,  21  Pac.  413;    COLEMAN  v, 


§  83)  EXCUSES  FOR  ANNUAL  LABOK.  283 

pays  for  the  annual  labor  he  may  be  unable  to  make  the  statutory 
affidavit  of  labor  performed.74  Where  the  claim  owner  performs  the 
labor  himself,  the  market  value  of  the  labor  and  materials  is  its 
measure  of  value.75 

One  who  relies  upon  a  forfeiture  for  want  of  annual  labor  must 
negative  the  expenditure  of  $100  in  improvements,  as  well  as  negative 
its  expenditure  in  work  and  labor,76  and  where  the  $100  worth  of 
work  has  been  done  on  a  claim  belonging  to  co-owners,  and  there  is  no 
showing  that  they  did  not  do  it,  the  presumption  is  that  some  of  them 
did  it.77 

EXCUSES  FOR  ANNUAL  LABOR. 

83.  Congress  has  several  times  for  special  reasons  permitted  the  fil- 
ing of  certificates  of  intention  to  hold  a  mining  claim  to  take 
the  place  of  annual  labor.  At  all  times  a  forcible  adverse 
possession  will  excuse  the  performance  of  annual  labor  as 
against  the  wrongdoer. 

Annual  labor  has  been  excused  in  some  years  in  favor  of  certain 
classes  of  claimants,  who  in  lieu  of  annual  labor  filed  certain  certifi- 
cates. In  1893  and  1894  Congress,  because  of  business  depression, 
suspended  for  those  years  the  annual  labor  requirements  in  favor 
of  those  who  filed  certificates  prescribed  by  the  statutes.78  The  re- 
quired certificates  amounted  practically  only  to  a  notice  of  bona  fide 
intention  to  hold  the  claims;  the  act  of  filing  the  certificates  being 
the  equivalent  of  the  performance  of  the  work.79  In  1898  a  similar 
act  was  passed  relieving  Spanish  War  volunteers  from  assessment 
work  during  the  period  of  enlistment  on  filing  similar  certificates.80 
The  filing  of  the  certificate  under  such  acts  has  been  held  to  be  the 

CURTIS,  12  Mont.  301,  30  Pac.  266.  See  Godfrey  v.  Faust,  18  S.  D.  567, 
101  N.  W.  718. 

74  See  COLEMAN  v.  CURTIS,  supra,  where  the  statute  required  the  ac- 
tual amount  paid  for  the  work  to  be  stated. 

75  See  QUIMBY  v.  BO  YD,  8  Colo.  194,  6  Pac.  462. 

76  POWER  v.   SLA,  24  Mont.  243,  61  Pac.  468. 

77  Yarwood  v.  Johnson,  29  Wash.  643,  70  Pac.  123. 

7  s Act  Nov.  3,  1893,  c."12,  28  Stat.  6;  Act  July  18,  1894,  c.  142,  28  Stat. 
114.  In  1907  a  bill  for  a  similar  act  passed  the  United  State  Senate,  but 
too  late  in  the  year  for  the  House  to  concur  in  it. 

7»A  certificate  filed  by  one  who  reasonably  supposed  himself  a  co-owner, 
and  who  acted  at  the  instance  of  one  of  the  real  owners,  was  upheld  in 
Nesbitt  v.  De  Lamar's  Nevada  Gold  Min.  Co.,  24  Nev.  273,  52  Pac.  609,  53 
Pac.  178,  77  Am.  St.  Rep.  807.  See  Dibble  v.  Castle  Chief  Gold  Min.  Co., 
9  S.  D.  618,  70  N.  W.  3055. 

so  Act  July  2,  1898,  c.  563,  §  1,  30  Stat  651  (U.  S.  Comp.  St  1901,  p.  1428). 


284  ANNUAL  LABOR   OR   IMPROVEMENTS  REQUIREMENTS.       (Ch.  16 

equivalent  of  annual  labor,  where  previous  work  has  been  kept  up, 
and  also  to  be  sufficiently  equivalent  to  such  work  to  save  the  claim 
from  forfeiture  for  previous  delinquencies.81 

Even  apart  from  statute,  the  nonperformance  of  annual  labor  will 
be  excused  as  against  one  who  wrongfully  puts  the  claim  owner  out 
of  possession  and  holds  adversely  to  him.82  The  same  is  true  where 
another  by  threats  prevents  the  claim  owner  or  his  servant  from  do- 
ing the  work  on  the  claim  to  which  the  threats  applied,  provided  the 
threats  are  made  under  circumstances  making  their  execution  rea- 
sonably to  be  dreaded.83 

PROOF  OF  ANNUAL  LABOR. 

84.  The  doing  of  annual  labor  may  be  *proved  in  the  same  way  as 
other  overt  acts;  but  in  some  jurisdictions  by  statute  the; 
filing  of  an  affidavit  of  annual  labor  within  a  given  time  after 
the  labor  is  done  makes  out  a  prima  facie  case  of  its  perform- 
ance. In  a  few  jurisdictions  the  failure  to  file  the  affidavit  is 
prima  facie  evidence  that  the  work  has  not  been  done.  In 
drawing  and  filing  the  affidavit,  the  statutes  of  the  given  ju- 
risdiction should  be  fully  complied  with. 

Most  of  the  mining  law  states  and  territories  have  enacted  statutes 
providing  for  the  filing  of  affidavits  that  the  annual  labor  has  been  done, 
and  making  the  affidavits  prima  facie  evidence  that  the  work  has  been 
performed.  Arizona,  Arkansas,  Colorado,  Idaho,  Montana,  Nevada, 
New  Mexico,  Washington,  and  Wyoming  have  such  statutes,  and 
Congress  has  provided  similar  legislation  for  Alaska.  The  object  of 
these  statutes  is  to  enable  a  mining  claim  owner  to  preserve  in  con- 
venient form  prima  facie  evidence  of  the  performance  of  annual  la- 
bor.84 A  failure  to  prepare  and  file  the  affidavit,  or  a  mistake  in  the 
affidavit  filed,  nowhere  precludes  other  evidence  of  the  fact  of  the  per- 

si  FIELD  v.  TANNER,  32  Colo.  278,  75  Pac.  916. 

82  Utah  Mining  &  Mfg.  Co.  v.  Dickert  &  Myers  Sulphur  Co.,  6  Utah,  183, 
21  Pac.  1002,  5  L.  R.  A.  259 ;  FIELD  v.  TANNER,  32  Colo.  278,  75  Pac.  916 ; 
TREVASKIS  v.  PEARD,  111  Cal.  599,  44  Pac.  246;  Mills  v.  Fletcher,  100 
Cal.  142,  34  Pac.  637. 

ss  Slavonian  Min.  Co.  v.  Perasich  (C.  C.)  7  Fed.  331;  Garvey  v.  Elder  (S. 
D.)  109  N.  W.  508. 

s  4  Book  v.  Justice  Min.  Co.  (C.  C.)  58  Fed.  106,  118;  McCULLOCH  v. 
MURPHY  (C.  C.)  125  Fed.  147;  McGINNIS  v.  EGBERT,  8  Colo.  41,  5  Pac. 
652;  COLEMAN  v.  CURTIS,  12  Mont  301,  30  Pac.  266;  Davidson  v.  Bor- 
deaux, 15  Mont.  250,  38  Pac.  1075.  In  Noyes  v.  Clifford  (Mont.)  94  Pac.  842, 
affidavits  of  work  done  from  year  to  year  on  defendant's  location  of  an  al- 
leged "known  lode"  in  plaintiff's  patented  placer  were  admitted  in  evidence 
to  show  defendant's  good  faith  and  belief  that  the  vein  warranted  expendi- 
ture to  develop  it 


§  84)  PROOF   OF  ANNUAL  LABOR.  285 

formance  of  the  annual  labor  being-  given,85  though  in  Alaska,  Idaho, 
and  New  Mexico  the  statute  makes  such  failure  prima  facie  evidence 
that  the  required  labor  has  not  been  performed.  The  statutes  differ  as 
to  the  time  within  which  the  affidavits  have  to  be  filed  to  be  effective. 
In  Alaska  it  must  be  not  later  than  90  days  after  the  close  of  the 
year  in  which  the  work  is  performed.  In  Arizona  it  must  be  within 
3  months  after  the  expiration  of  the  period  of  time  fixed  for  the  per- 
formance of  the  labor.  In  Arkansas  it  must  be  on  or  before  Decem- 
ber 31st  of  the  year  in  which  the  work  must  be  done.  In  Colorado 
it  must  be  within  6  months  after  any  set  time  or  annual  period  al- 
lowed for  annual  labor.86  In  Idaho  and  New  Mexico  the  time  is 
60  days  after  the  period  allowed  for  performance  of  the  labor.  In 
Montana  the  affidavit  may  be  filed  within  20  days  after  the  annual 
work.  In  Nevada  within  60  days  after  the  performance  of  labor  is 
the  time  fixed.  In  Utah  and  in  Washington  the  time  fixed  for  filing 
is  within  30  days,  and  in  Wyoming  it  is  within  60  days,  after  the  com- 
pletion of  the  work. 

It  has  been  held  that  a  single  affidavit  may  well  cover  the  annual 
labor  on  several  claims,  and  that  if  the  work  has  been  done  the  affidavit 
cannot  be  prematurely  filed;87  but  in  jurisdictions  where  the  point 
has  not  yet  been  raised  all  chance  for  controversy  should  be  avoided 
by  filing  separate  affidavits  and  coming  within  the  letter  of  the  local 
statute  as  to  time.  Where,  however,  the  annual  labor  is  done  upon  a 
number  of  claims  by  working  upon  one  claim  of  a  group,  or  by  work- 
ing outside  of  the  group,  it  certainly  would  seem  as  if  everywhere  one 
affidavit  for  the  group  should  suffice,  and  as  if,  to  have  any  real  evi- 
dential value,  the  affidavit  should  state  just  how  the  work  done  benefits 
each  claim.  Not  all  of  the  state  statutes  permit,  as  the  Colorado  stat- 
ute does,  a  statement  of  the  mere  conclusion  of  the  affiant.  For  in- 
stance, the  Utah  statute  requires  the  affidavit  to  state :  "(1)  The  name 
of  the  claim  and  where  situated.  (2)  The  number  of  days*  work  done 
and  the  character  and  value  of  the  improvements  placed  thereon.  (3) 
The  date  or  dates  of  performing  said  labor  and  making  said  improve- 

sBMcOULLOCH  v.  MURPHY  (C.  C.)  125  Fed.  147;  Book  v.  Justice  Min. 
Co.  (C.  C.)  58  Fed.  106.  A  failure  to  file  the  affidavit  does  not  render  the 
claim  open  to  relocation.  Murray  Hill  Min.  &  Mill.  Co.  v.  Havenor,  24 
Utah,  73,  66  Pac.  762 ;  Book  v.  Justice  Min.  Co.  (C.  C.)  58  Fed.  106 ;  David- 
son v.  Bordeaux,  15  Mont.  245,  38  Pac.  1075;  COLEMAN  v.  CURTIS,  12 
Mont.  301,  30  Pac.  266 ;  Bismark  Mountain  Gold  Min.  Co.  v.  North  Sun- 
beam Gold  Co.  (Idaho)  95  Pac.  14.  The  California  act  of  1891  did  provide, 
however,  that  a  failure  to  file  the  affidavit  rendered  the  claim  open  to  re- 
location. Harris  v.  Kellogg,  117  Cal.  484,  49  Pac.  708. 

se  Under  this  statute  the  affidavit  may  be  made  and  filed  as  soon  as  the 
work  is  done,  even  if  it  is  before  the  end  of  the  year  for  the  annual  labor. 
McGinnis  v.  Egbert,  8  Colo.  41,  5  Pac.  652.  87  id. 


286  ANNUAL  LABOR   OR   IMPROVEMENTS   REQUIREMENTS.       (Ch.  16 

ments  and  number  of  cubic  feet  of  earth  or  rock  removed.  (4)  At 
whose  instance  or  request  said  work  was  done  or  improvements  made. 
(5)  The  actual  amount  paid  for  said  labor  and  improvements,  and  by 
whom  paid,  when  the  same  was  not  done  by  the  owner  or  owners  of 
said  claim."  88  The  statute  of  the  given  state  should  be  consulted  in 
each  case,  and  complied  with. 


ANNUAL    LABOR    PENDING    PATENT    PROCEEDINGS. 

85.  Until  entry  in  patent  proceedings  annual  labor  must  be  kept  up* 
After  entry  and  until  patent  issues  it  is  wise  to  perform  the 
annual  labor,  for  fear  for  some  reason  the  entry  may  be  can- 
celed. After  patent  no  annual  or  other  labor  is  required. 

Considerable  confusion  of  ideas  has  existed  in  regard  to  the  effect 
of  patent  proceedings  on  the  obligation  to  perform  annual  labor.  The 
statute  requires  the  work  to  be  done  each  year  on  each  claim  "until 
a  patent  has  been  issued  therefor."  89  After  a  patent  actually  issues 
no  work  need  be  done,  of  course;  but  will  anything  short  of  patent 
excuse?  It  seems  perfectly  clear  that  after  entry  in  the  land  office — 
that  is,  after  the  patent  proceedings  have  passed  the  point  where  the 
contract  of  purchase  is  complete  by  the  payment  of  the  money  for  the 
land  by  the  applicant — the  applicant  need  perform  no  more  actual 
labor  if  patent  ultimately  issues  to  him,  or,  more  accurately,  if  the  en- 
try is  not  canceled  by  the  land  department.90  The  reason  is  that  in 
such  case  all  proceedings  in  the  land  department  after  entry  are  im- 
material, and  the  receiver's  receipt  makes  the  applicant  the  equitable, 
and  for  all  practical  purposes  the  actual,  patentee.  But  the  "if"  above 
noted  causes  the  trouble.  If  for  any  reason  the  receiver's  receipt  is  can- 
celed by  the  land  department,  the  applicant  finds  himself  governed 
by  the  general  rule  that  until  entry  the  annual  labor  must  be  kept  up,91 
and  may  therefore  find  himself  without  a  claim  because  some  third 
person  relocates  it  on  account  of  the  failure  to  keep  up  the  annual 
labor.92  The  land  department,  to  be  sure,  has  ruled  that  it  will  not 

s  B  Laws  Utah  1899,  p.  27,  c.  14. 

8»  Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426). 

so  BENSON  MINING  &  SMELTING  CO.  v.  ALTA  MINING  &  SMELT- 
ING CO.,  145  U.  S.  428,  12  Sup.  Ct.  877,  36  L.  Ed.  762;  Aurora  Hill  Consol. 
Min.  Co.  v.  Eighty-Five  Mining  Co.  (C.  C.)  34  Fed.  515;  Neilson  v.  Cham- 
paigne  Min.  &  Mill.  Co.  (C.  C.)  Ill  Fed.  655;  Deno  v.  Griffin,  20  Nev.  249, 
20  Pac.  308;  Southern  Cross  Gold  Min.  Co.  v.  Sexton,  147  Cal.  758,  82 
Pac.  423. 

01  SOUTH  END  MIN.  CO.  v.  TINNEY,  22  Nev.  19,  35  Pac.  89 ;  Id.,  22 
Nev.  221,  38  Pac.  401;  MURRAY  v.  POLGLASE,  23  Mont.  401,  59  Pac.  439. 

92  South  End  Min.  Co.  v.  Tinney,  22  Nev.  19,  35  Pac.  89;  Id.,  22  Nev.  221, 
38  Pac.  401;  MURRAY  v,  POLGLASE,  23  Mont.  401,  59  Pac.  439.  See 


§  85)  ANNUAL   LABOR   PENDING    PATENT   PROCEEDINGS.  287 

regard  a  protest  against  a  patent  application  based  upon  the  fact  that 
pending  an  adverse  suit  the  applicant  did  not  keep  up  the  annual  la- 
bor; 93  but  that  ruling  may  well  be  reversed  later.  It  certainly  lacks 
the  sanction  of  judicial  authority,94  and  seems  to  be  altogether  too 
loose  a  construction  of  the  statute  to  make  one  feel  safe  in  following 
it.  This  is  particularly  true  because,  since  the  foregoing  ruling,  the 
land  department  has  announced  that  questions  "as  to  the  performance 
of  annual  expenditure  and  as  to  the  alleged  relocations  are  not  for  de- 
termination by  the  land  department,  but  by  the  courts."  95  The  only 
wise  course  is  to  perform  the  annual  labor,  not  only  until  the  receiv- 
er's receipt  is  issued,  but  also,  for  fear  of  protest  on  the  ground  of 
laches  or  fraud,  to  perform  that  labor  until  patent  actually  issues.ff  A 
recent  case  has  held  that  a  cancellation  of  the  receiver's  receipt  issued 
on  an  insufficient  published  notice  of  application  for  patent  cannot 
be  made  retroactive,  because  the  applicant  had  a  right  to  rely  on  the 
entry  to  excuse  the  performance  of  the  annual  labor,98  and  that  cer- 
tainly seems  sound. 

It  seems  needless  to  say  that  the  doing  of  the  $500  worth  of  work 
which  enables  one  to  apply  for  patent  will  not  dispense  with  the  ne- 
cessity of  annual  labor  thereafter. 

Figg  v.  Hensley,  52  Cal.  299;  Swigart  v.  Walker,  49  Kan.  100,  30  Pac.  162. 
The  mere  mistaken  cancellation  of  an  entry  does  not  make  the  entered 
ground  subject  to  relocation.  Rebecca  Gold  Min.  Co.  v.  Bryant,  31  Colo. 
119,  71  Pac.  1110,  102  Am.  St.  Rep.  17. 

93  Marburg  Lode  Min.  Claim,  30  Land  Dec.  Dep.  Int  202;  Laughing  Wa- 
ter Placer,  34  Land  Dec.  Dep.  Int.  56. 

•*  Where  the  applicant  allowed  his  application  to  sleep  for  years  with- 
out paying  the  purchase  money,  a  relocation  based  on  the  failure  to  perform 
annual  labor  was  upheld  in  GILLIS  v.  DOWNEY,  85  Fed.  483,  29  C.  C.  A. 
286.  The  inexcusable  delay  of  an  applicant  to  complete  his  application  for 
patent  within  the  calendar  year  in  which  the  publication  ended  was  held 
fatal  to  the  application  in  the  land  department  on  a  protest  by  a  relocator, 
and  a  renewed  application,  with  a  chance  to  the  relocator  to  adverse,  was 
ordered  in  CLEVELAND  v.  EUREKA  NO.  1  GOLD  MIN.  &  MILL.  Co.,  31 
Land  Dec.  Dep.  Int.  69.  See  Lucky  Find  Placer  Claim,  32  Land  Dec.  Dep. 
Int.  200. 

»5  Cleveland  v.  Eureka  No.  1  Gold  Min.  &  Mill.  Co.,  31  Land  Dec.  Dep.  Int. 
69;  Lucky  Find  Placer  Claim,  32  Land  Dec.  Dep.  Int.  200. 

ft  Id.  In  Willitt  v.  Baker  (C.  C.)  133  Fed.  937,  the  rule  was  laid  down 
that,  to  entitle  either  party  to  an  adverse  suit  to  get  judgment,  he  must  prove 
the  performance  of  the  annual  labor.  While  that  ruling  is  questionable,  it 
emphasizes  the  importance  of  continuing  the  annual  labor  until  entry,  at 
least. 

•«  SOUTHERN  CROSS  GOLD  MIN.  CO.  v.  SEXTON,  147  Cal.  758,  82 
Pac.  423. 


288  ANNUAL  LABOR  OK  IMPROVEMENTS   REQUIREMENTS.      (Ch.  16 


RESUMPTION    OF    WORK. 

86.  After  a  failure  to  perform  the  annual  labor  the  claim  owner  may 

restore  the  claim  to  its  original  validity  by  resuming  work  on 
it  prior  to  a  relocation  by  third  parties;  and  this  seems  to  be 
so,  although  there  was,  at  the  time  of  the  default  and  after- 
wards, an  overlapping  junior  location. 

87.  Resumption  must  take  place  before  relocation;  but  the  authorities 

are  divided  on  the  question  whether  a  resumption  is  effective 
where  it  comes  after  the  first  act,  but  before  the  last  act,  of 
relocation.  Under  the  modern  statutes,  it  would  seem  that 
principle  requires  such  resumption  to  be  held  to  be  too  late. 

88.  Resumption  of  work  is  the  expenditure  with  reasonable  diligence 

of  the  statutory  amount  in  labor  and  improvements  for  the 
year  in  which  the  resumed  work  is  finished. 

With  reference  to  annual  labor  the  federal  statute  provides  that, 
"upon  a  failure  to  comply  with  these  conditions,  the  claim  or  mine 
upon  which  such  failure  occurred  shall  be  open  to  relocation  in  the 
same  manner  as  if  no  location  of  the  same  had  ever  been  made,  pro- 
vided that  the  original  locators,  their  heirs,  assigns,  or  legal  repre- 
sentatives, have  not  resumed  work  upon  the  claim  after  failure  and 
before  such  location."  9T  A  forfeiture  does  not  result  from  the  mere 
failure  to  do  the  annual  labor,  but  from  that  failure  coupled  with  a 
relocation  by  others  before  resumption  of  work  by  the  person  whose 
interest  was  forfeitable.  No  matter  how  many  years  intervene  be- 
tween the  doing  of  the  previous  annual  labor  and  the  resumption  of 
work,  the  statute  makes  the  location  perfectly  valid  because  of  the 
resumption,  provided  the  claim  has  not  in  the  meantime  been  relocated, 
or,  if  relocated,  the  relocation  does  not  still  exist.98  The  original  lo- 
cator's "rights  after  resumption  are  precisely  what  they  would  have 
been  had  no  default  occurred."  99 

If  there  has  been  in  the  meantime  a  relocation  which  has  itself  be- 
come forfeitable  for  failure  to  do  annual  labor,  it  is  a  question  whether 
the  resumption  of  labor  will  revive  the  original  claim.  The  Utah  Su- 

»7  Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1427). 

» s  JUSTICE  MIN.  CO.  v.  BARCLAY  (C.  O.)  82  Fed.  554;  Crown  Point 
Mining  Co.  v.  Crismon,  39  Or.  364,  65  Pac.  87;  Klopenstine  v.  Hays,  20 
Utah,  45,  57  Pac.  712 ;  Buffalo  Zinc  &  Copper  Co.  v.  Crump,  70  Ark.  525,  69 
S.  W.  572,  91  Am.  St.  Rep.  87;  Worthen  v.  Sidway,  72  Ark.  215,  79  S.  W. 
777;  Du  Prat  v.  James,  65  Cal.  555,  4  Pac.  562;  Lacey  v.  Woodward,  5 
N.  M.  583,  25  Pac.  785 ;  Little  Dorrit  Gold  Min.  Co.  v.  Arapahoe  Gold  Min. 
Co.,  30  Colo.  431,  71  Pac.  389. 

9»BELK  v.  MEAGHER,  104  U.  S.  279,  26  L.  Ed.  735.  See  Emerson  v. 
McWhirter,  133  Cal.  510,  65  Pac.  1036. 


§§  86-88)  RESUMPTION    OF   WORK. 

preme  Court,  in  a  dictum  in  Klopenstine  v.  Hays,100  approves  the 
syllabus  of  a  federal  case  101  to  the  effect  that  it  will  revive  the  orig- 
inal claim ;  and,  while  neither  case  actually  decides  the  point,  the  view 
seems  reasonable.  The  difficulty  of  having  the  title  relate  back  to  the 
original  location,  and  thus  antedate  the  relocation,  seems  to  be  very 
technical,  in  view  of  the  fact  that  the  relocation  necessarily  is  forfeit- 
ed by  the  entry  to  resume  work.  Those  who  criticise  the  dicta  above 
approved  do  so  on  the  ground  that  relocation  renders  the  original  loca- 
tion just  "as  if  no  location  of  the  same  had  ever  been  made;": 
but  they  overlook  the  fact  that  this  language  does  not  really  state 
the  statute  properly.  The  provision  is  that  the  land  shall  be  open  to 
relocation  as  if  no  location  had  ever  been  made.  The  relocation  can- 
not be  attacked  on  the  ground  that  the  previous  location  existed ;  but 
neither  need  a  forfeited  relocation  stand  in  the  way  of  resumption 
of  work.  The  question,  however,  is  an  open  one. 

A  much  more  troublesome  question  is  whether,  where  there  are 
overlapping  locations,  and  the  owner  of  the  senior  location  omits  to 
do  the  required  annual  labor  in  any  year,  such  owner  can  restore  the 
senior  claim  as  to  the  conflict  area  by  resuming  work.  Until  the  case 
of  Lavagnino  v.  Uhlig  10S  was  decided  by  the  Supreme  Court  of  the 
United  States  no  one  ever  doubted  that  he  could.  That  case,  how- 
ever, laid  down  the4  doctrine  clearly  that  where  the  senior  location  is 
abandoned  or  forfeited  the  conflict  area,  as  between  the  junior  claim- 
ant and  an  attempted  relocator,  inures  to  the  junior  claimant  with- 
out any  act  being  done  by  the  latter.  The  question,  then,  is :  Does 
the  conflict  area  inure  to  the  junior  locator  as  against  the  senior  lo- 
cator, so  that  the  latter  cannot  by  resuming  work  regain  it?  It  would 
seem  as  if,  between  the  senior  locator  and  the  junior,  the  right  of  the 
senior  to  resume  work  cannot  be  cut  off,  except  by  some  affirmative 
act  of  the  junior  prior  to  the  resumption  of  work.  The  recording  of 
an  amended  location  certificate  has  always  been  regarded  as  a  suffi- 
cient affirmative  act;104  but  nothing  short  of  that  should  cut  off  the 
right  to  resume.  Such  record  of  an  amended  location  certificate  is  in 
effect  a  relocation  by  the  adoption  of  the  former  discovery,  location 
markings,  etc.,  and  as  a  relocation  stands  in  the  way  of  resumption 

100  20  Utah,  45,  57  Pac.  712. 

101  Justice  Min.  Co.  v.  Barclay  (C.  C.)  82  Fed.  554. 

102  gee  2  Lindley  on  Mines  (2d  Ed.)  §  651. 

103  198  U.  S.  443,  25  Sup.  Ct.  716,  49  L.  Ed.  1119. 

!•*  See  Tonopah  &  S.  L.  Min.  Oo.  v.  Tonopah  Min.  Co.  (C.  C.)  125  Fed. 
389.     But  Colorado  refuses  to  regard  it  as  sufficient,  where  the  junior  loca- 
tion is  "void"  because  based  on  a  discovery  within  the  senior  claim.     Sulli- 
van v.  Sharp,  33  Colo.  346,  80  Pac.  1054. 
COST.MIN.L.— 19 


290  ANNUAL  LABOR   OR   IMPROVEMENTS   REQUIREMENTS.      (Ch.  16 

of  work  by  the  senior  locator  so  far  as  the  conflict  area  is  concerned, 
but  nothing  short  of  that  should  do  so.  The  case  of  Lavagnino  v. 
Uhlig  seems,  therefore,  to  leave  undisturbed  the  decision  of  the  United 
States  Circuit  of  Appeals,  Eighth  Circuit,  that  the  mere  failure  of 
the  owner  of  a  senior  location  to  perform  the  annual  labor  for  one 
year  does  not  divest  his  title  to  the  conflict  area  in  favor  of  the  junior 
overlapping  location,  and  that  a  resumption  of  work  by  the  senior 
locator  prior  to  a  relocation  by  the  junior  locator,  or  to  the  filing  of 
an  amended  location  certificate  by  him,  is  valid.105 

When  Resumption  of  Work  must  Take  Place. 

As  between  a  relocator  and  one  claiming  to  have  resumed  work 
tinder  the  statute,  a  very  close  question  of  fact  may  arise.  JJ  The  Su- 
preme Court  of  Montana  early  decided  and  later  reaffirmed  the  doctrine 
that  the  former  owner  may  cut  out  a  relocator  by  resuming  work  at  any 
time  before  the  relocator  performs  all  the  necessary  acts  of  location,106 
and  California  and  New  Mexico  have  held  the  same  way.107  The 
Montana  act  of  1907  has  recently  changed  the  rule  in  that  state.  Op- 
posed to  the  former  Montana  and  to  the  California  view  is  that  of 
Judge  Hallett,  who  in  1878  announced  the  doctrine  that  resumption 
could  come  only  "before  another  has  taken  possession  of  the  property 
with  intent  to  relocate  it."  "It  is,"  said  Judge  Hallett,  "the  entry  of 
the  new  claimant  with  intent  to  relocate  the  property,  and  not  mere 
lapse  of  time,  that  determines  the  right  of  the  original  claimant."  108 

There  can  be  littk  doubt  that  Judge  Hallett's  view  is  the  one  which 
accords  with  the  purpose  of  the  mining  laws  to  encourage  the  loca- 

105OSCAMP  v.  CRYSTAL  RIVER  MIN  CO.,  58  Fed.  293,  7  C.  C.  A. 
233.  Until  SULLIVAN  v.  SHARP,  supra,  is  declared  to  be  bad  law,  a 
complete  relocation  should  take  place.  See,  however,  dictum  in  Moorhead  v. 
Erie  Min.  &  Mill.  Co.  (Colo.)  96  Pac.  253,  to  the  effect  that  an  amended  cer- 
tificate will  do. 

$$  Whether  resumption  precedes  relocation  or  not  is  a  question  of  fact 
for  the  trial  court  where  the  evidence  is  conflicting,  and  a  decision  of  the 
highest  court  of  the  state  affirming  on  that  ground  the  trial  court's  finding 
that  resumption  preceded  relocation  does  not  amount  to  a  denial  of  the  right 
of  relocation,  so  as  to  permit  a  review  in  the  Supreme  Court  of  the  United 
States  on  writ  of  error.  Yosemite  Gold  Min.  &  Mill.  Co.  v.  Emerson,  208 
U.  S.  25,  28  Sup.  Ct  196,  52  L.  Ed.  374. 

loe  Gonu  v.  Russell,  3  Mont  358;  McKAY  v.  McDOUGALL,  25  Mont. 
258,  64  Pac.  669,  87  Am.  St.  Rep.  395. 

107PHARIS  v.  MULDOON,  75  Cal.  284,  17  Pac.  70;  Belcher  Consol.  Gold 
Min.  Co.  v.  Deferrari,  62  Cal.  160;  Lacey  v.  Woodward,  5  N.  M.  583,  25 
Pac.  785.  See,  also,  Field  v.  Tanner,  32  Colo.  278,  75  Pac.  916 ;  Worthen  v. 
Sidway,  72  Ark.  215,  79  S.  W.  777. 

IDS  LITTLE  GUNNEL  GOLD  MINING  CO.  v.  KIMBER,  1  Morr.  M.  Rep. 
536,  539.  Compare  Pelican  &  Dives  Min.  Co.  v.  Snodgrass,  9  Colo.  339,  12 
Pac.  206 ;  Slavonian  Min.  Co.  v.  Perasich  (C.  C.)  7  Fed.  331. 


§§  86-88)  RESUMPTION   OF  WORK.  291 

tion  of  claims  by  those  who  will  develop  them.  It  is  to  be  noticed, 
too,  that  the  Montana  court  at  least  did  not  say  that  Judge  Hallett's 
rule  is  not  the  right  one  where  development  work  requirements  ex- 
ist. In  refusing  to  adopt  Mr.  Lindley's  view,109  which  accorded  and 
still  accords  with  Judge  Hallett's,  the  Montana  court,  speaking  be- 
fore the  statute  of  1907  adopted  Judge  Hallett's  view,  said :  "What- 
ever may  be  the  rule  in  other  jurisdictions,  under  local  statutes  re- 
quiring work  of  considerable  amount  to  be  done  by  the  relocator  in 
order  to  complete  his  relocation,  which  is  also  the  case  under  our 
present  statute,  the  rule  applicable  under  the  statute  in  force  in  this 
state  until  July  1,  1895,  is  that  resumption  of  labor  in  good  faith  prior 
to  the  completion  of  the  acts  of  relocation  defeats  the  relocation."  110 
That  was  because  under  the  old  statute  nothing  was  requisite  to  a 
location  except  to  post  notice,  mark  the  location  on  the  ground,  and 
record  a  declaratory  statement.111 

It  should  frankly  be  admitted  that  under  the  old  Montana  statute 
the  fact  that  forfeitures  are  odious  to  the  law  justified  the  above  rule 
adopted  by  the  Montana  court;112  but,  wherever  a  mining  code  re- 
quires development  work  as  an  act  of  location,  the  public  policy  re- 
vealed by  the  statute  and  contained  in  the  la,w  of  estoppel  outweighs 
the  objection  to  forfeiture.113  Under  such  a  code  the  correct  rule 
to  be  followed  is  that  adopted  by  the  Montana  act  of  1907,  namely: 
"The  right  of  a  relocator  of  any  abandoned  or  forfeited  mining  claim, 
hereafter  relocated,  shall  date  from  the  posting  of  his  notice  of  location 
thereon,  and  while  he  is  duly  performing  the  acts  required  by  law 
to  perfect  his  location  his  rights  shall  not  be  affected  by  any  re-entry 
or  resumption  of  work  by  the  former  locator  or  claimant."  114 

What  Constitutes  Resumption. 

Doing  the  full  $100  worth  of  work  in  any  year  will  be  taken  to  be 
resumption  in  good  faith,  in  the  absence  of  any  evidence  to  the  cpn- 

io»  1  Lindley  on  Mines  (2d  Ed.)  §  408. 

noMcKAY  v.  McDOUGALL,  25  Mont.  258,  64  Pac.  669,  87  Am.  St.  Rep. 
395. 

in  See  Gonu  v.  Russell,  3  Mont.  358. 

112  The  same  applies  to  the  California  cases.  PHARIS  v.  MULDOON,  75 
Cal.  284,  17  Pac.  70. 

us  If  relocators  have  entered  and  are  in  actual  possession  after  a  for- 
feiture, although  they  have  not  relocated,  the  original  locators  have  no 
right  to  make  a  forcible  entry  for  the  purpose  of  resuming  work.  SLAVON- 
IAN MIN.  CO.  v.  PERASICH  (C.  C.)  7  Fed.  331. 

11*  Laws  Mont.  1907,  p.  21.  The  possession  of  the  original  locator,  with- 
out the  resumption  of  work  by  him,  will  not  prevent  a  relocation,  if  it  is  made 
peaceably.  GOLDBERG  v.  BRUSCHI,  146  Cal.  708.  81  Pac.  23. 


292  ANNUAL  LABOR   OE  IMPROVEMENTS   REQUIREMENTS.      (Ch.  16 

trary.115  This  is  the  rule  as  against  those  who  seek  to  relocate  after 
the  work  is  done;  but  as  against  a  relocator,  who  conies  in  before 
the  year  is  over  and  finds  that  the  resumer  has  not  proceeded  with 
reasonable  diligence  to  complete  the  $100  worth  of  work,  but  instead 
has  acted  as  if  resuming  and  doing  some  work  permitted  a  postpone- 
ment of  the  rest,  no  presumption  of  good  faith  should  be  indulged. 
As  the  Montana  court  said:  "The  resumption  of  work  by  the  orig- 
inal locator,  whose  rights  are  subject  to  forfeiture,  without  the  ex- 
penditure, with  reasonable  diligence,  during  the  year,  of  the  sum  of 
$100  for  labor  or  improvements  upon  the  mine,  is  an  evasion  of  the 
statute."  116  And  that  court  very  properly  declared  that  the  case  of 
Belcher  Consol.  Gold  Min.  Co.  v.  Deferrari,117  which  decided  that  the 
expenditure  of  $24  on  two  claims  'in  January  was  such  a  resump- 
tion of  work  as  would  defeat  a  relocation  in  August  following,  is 
unsound.  The  Montana  court  also  quoted  with  approval  the  often 
repeated  declaration  of  Messrs.  Morrison  and  De  Soto  that  "such  a 
decision"  as  the  California  one  just  mentioned  "is  only  trifling  with 
the  law  and  the  rights  of  parties  based  on  the  law."  118 

The  California  court  has  since  modified  its  views,  expressed  in 
Belcher  Consol.  Gold  Min.  Co.  v.  Deferrari,  supra,  to  the  extent  of 
declaring  that  "to  'resume*  work/  within  the  meaning  of  said  section 
2324:,  is  to  actually  begin  work  anew,  with  a  bona  fide  intention  of 
prosecuting  it  as  required  by  said  section."  119  There  is  every  reason 
to  believe  that  it  will  yet  hold  that  resuming  work  does  not  mean  re- 
gaining a  year's  time  to  do  the  work  of  the  year  of  resumption  by 
making  a  slight  expenditure,  but  instead  means  beginning  in  good 
faith  and  finishing  with  reasonable  diligence  $100  worth  of  work  as  a 
condition  precedent  to  the  rehabilitation  of  the  claim.  The  prosecu- 
tion of  the  work  to  a  finish  with  reasonable  diligence  is  an  essential 
element  of  a  bona  fide  resumption.120 

Further  consideration  of  the  subject  of  resumption  is  deferred  to 
the  next  chapter. 

H6TEMESCAL  OIL  MINING  &  DEVELOPMENT  CO.  v.  SALCIDO,  137 
Cal.  211,  69  Pac.  1010. 

no  HONAKER  v.  MARTIN,  11  Mont  91,  97,  27  Pac.  397.  See  HIRSCH- 
LER  v.  McKENDRICKS,  16  Mont  211,  40  Pac.  290. 

117  62  Cal.  160.     See,  also,  Klopenstine  v.  Hays,  20  Utah,  45,  57  Pac.  712. 

"8  Quoted  in  Honaker  v.  Martin,  11  Mont  91,  96,  27  Pac.  397.  Repeated 
in  Morrison's  Mining  Rights  (12th  Ed.)  97. 

n»  McCORMICK  v.  BALDWIN,  104  Oal.  227,  229,  37  Pac.  903. 

120HIRSCHLER  v.  McKENDRICKS,  16  Mont  211,  40  Pac.  290;  Honaker 
v.  Martin,  supra.  See  Bishop  v.  Baisley,  28  Or.  119,  41  Pac.  936. 


§§  89-90)  FORFEITURE   TO   CO-OWNER.  293 


FORFEITURE    TO    CO-OWNER. 

89.  The  federal  statute  authorizes  one  co-owner,  who  has  had  to  bear 

the  whole  or  a  disproportionately  large  part  of  the  annual 
labor  expenditure,  to  acquire  by  forfeiture  the  interest  of  the 
delinquent  co-owner.  The  forfeiture  takes  place  by  notice 
given  by  the  diligent  co-owner  to  the  delinquent  personally 
or  by  publication,  and  by  the  failure  of  the  delinquent  co- 
owner  to  contribute  his  proportion  of  the  expenditure  within 
90  days  after  such  notice.  The  local  statutes  in  some  juris- 
dictions supplement  the  federal  statute  by  requiring  a  copy 
of  the  notice  and  an  affidavit  of  service  to  be  recorded,  and  by 
giving  them  evidential  quality  when  so  recorded. 

90.  Whether  the  owner  of  one  partitioned  or  granted  piece  of  a  min- 

ing claim  is  a  "co-owner,"  within  the  meaning  of  the  statute, 
with  the  owner  of  another  partitioned  or  granted  piece  of  the 
same  mining  claim,  query? 

The  failure  of  one  of  several  co-owners  of  an  unpatented  mining 
claim  to  perform  his  share  of  the  annual  labor  requisite  to  hold  the 
claim  throws  the  whole  burden  of  performing  that  labor  on  his  co- 
owners.  Annual  labor  only  partially  performed  gives  no  right,121 
and  since,  therefore,  a  performance  by  one  co-owner  of  his  proportion- 
ate share  of  the  annual  labor  will  not  save  his  interest,  the  delin- 
quent co-owner  really  compels  the  diligent  one  to  work  for  both.  In 
the  absence  of  statute,  therefore,  the  delinquent  co-owner  would  have 
his  interest  preserved  by  the  diligent  co-owner's  labor.122  To  over- 
come the  injustice  of  that  situation  Congress  enacted  in  1872  the  fol- 
lowing provision :  "Upon  the  failure  of  any  one  of  several  co-owners 
to  contribute  his  proportion  of  the  expenditures  required  hereby, 
the  co-owners  who  have  performed  the  labor  or  made  the  improve- 
ments may,  at  the  expiration  of  the  year,  give  such  delinquent  co- 
owner  personal  notice  in  writing  or  notice  by  publication  in  the  news- 
paper published  nearest  the  claim,  for  at  least  once  a  week  for  ninety 
days,  and  if,  at  the  expiration  of  ninety  days  after  such  notice  in  writ- 
ing or  by  publication  such  delinquent  should  fail  or  refuse  to  con- 
tribute his  proportion  of  the  expenditure  required  by  this  section,  his 
interest  in  the  claim  shall  become  the  property  of  his  co-owners  who 
have  made  the  required  expenditures."  123 

The  foregoing  statute  relates,  of  course,  only  to  the  $100  of  neces- 
sary annual  labor  or  annual  improvement.  If  any  co-owner  fails  to  con- 
tribute, and  then  his  other  co-Owners  expend  more  than  $100,  the 

.121  Saunders  v.  Mackey,  5  Mont  523,  6  Pac.  361. 
122FAUBEL  v.  McFARLAND,   144  Cal.  717,  78  Pac.  261. 
123  Rev.  St.  U.  S.  §•  2324  (U.  S.  Comp.  St.  1901,  p.  1427). 


294  ANNUAL  LABOR   OR   IMPROVEMENTS   REQUIREMENTS.      (Ch.    16 

delinquent  co-owner  may  save  his  interest  from  forfeiture  by  paying 
his  proportionate  part  of  the  $100.  For  anything  beyond  the  $100 
the  co-owner  who  has  made  the  expenditures  must  rely  upon  other 
legal  rights,  if  any.124  The  remedy  given  by  the  statute  is  extra- 
judicial,  and  is  confined,  therefore,  to  the  exact  situation  legislated 
about.  The  statute  is  one  of  forfeiture,  and  should  be  strictly  con- 
strued.125 

Constitutionality  of  the  Forfeiture  Statute. 

Originally  doubts  about  the  constitutionality  of  this  statute  were 
expressed ;  but  they  have  been  set  at  rest  by  a  decision  of  the  United 
States  Supreme  Court.126  The  co-tenant  who  is  "advertised  out" 
is  not  deprived  of  property  without  due  process  of  law;  but  instead 
the  United  States,  the  real  owner  of  the  mining  ground  at  the  out- 
set, has  provided  this  as  an  additional  "rule  of  the  game"  of  acquir- 
ing title  from  the  United  States.  On  forfeiture  under  the  act,  a 
statutory  proceeding  in  rem,  analogous  in  some  respects  to  patent 
proceedings,  takes  place,  and  the  defaulting  co-owner  receives  all  the 
consideration  he  is  entitled  to.  The  mining  claimant  holds  only  a 
conditional  title,  and  the  right  which  the  United  States  has  to  pro- 
vide for  a  relocation  of  the  whole  claim  if  the  annual  labor  is  not 
performed  is  no  more  unquestionable  than  is  its  right  to  forfeit  the  de- 
linquent co-owner's  interest  for  his  failure  to  contribute  his  share 
of  the  necessary  labor  or  expenditure.127 

Forfeiture  may  be  by  Personal  Service  or  by  Publication  of  Notice. 
The  statute  gives  the  diligent  co-owners  the  right  to  resort  either 
to  personal  service  or  to  publication  at  their  option,  and  there  is  no 
saving  of  the  rights  of  minor  heirs.128  Moreover,  the  diligent  co- 
owners  may  group  in  one  notice  the  delinquencies  of  more  than  one 
year.129  If  the  delinquent  co-owner  has  died,  then,  even  though  the 
estate  has  vested  in  minor  heirs,  it  is  not  necessary  to  name  them; 
but  a  notice  addressed  to  the  co-owner  by  name,  "his  heirs  adminis- 
trators, and  to  whom  it  may  concern,"  is  sufficient,  if  it  contains  the 
proper  recitation  of  facts.130 

124  See  Holbrooke  v.  Harrington  (Cal.)  36  Pac.  365. 

12  5  TURNER  v.  SAWYER,  150  U.  S.  578,  14  Sup.  Ct.  192,  37  L.  Ed.  1189. 
"SVhether  or  not  the  one  seeking  to  forfeit  made  a  bona  fide  attempt  to  com- 
ply with  the  law  is  immaterial.  McKAY  v.  NEUSSLER,  148  Fed.  86,  78 
C.  C.  A.  154. 

126  ELDER  v.  HORSESHOE  MIN.  &  MILL.  CO.,   194  U.  S.  248,  24  Sup. 
Ct.  043,  48  L.  Ed.  960. 

127  Id.  128  Id.  129  Id. 

130  id.  In  other  cases,  however,  the  co-owner  must  be  named  in  the  no- 
tice, for  the  forfeiture  to  take  place.  BALLARD  v.  GOLOB,  34  Colo.  417,. 


§§  89-90)  FORFEITURE    TO   CO-OWNER.  295 

Where  publication  is  resorted  to,  it  is  not  turned  into  personal  ser- 
vice by  showing  that  copies  of  the  paper  containing  the  published 
notice  were  sent  to  and  received  by  the  party  in  default.131  And, 
when  the  statute  says  that  the  notice  must  be  published  "in  the  news- 
paper published  nearest  the  claim,"  that  means  the  nearest  in  a  di- 
rect line,  and  not  by  the  usually  traveled  route.132  The  requirement 
of  publication  for  at  least  once  a  week  for  90  days  is  fully  met  by 
publication  for  13  weeks,  although  there  may  be  only  85  days  be- 
tween the  first  and  the  last  publication.134  Since,  however,  the  for- 
feiture is  not  complete  until  90  days  after  notice  in  writing  or  by  pub- 
lication, it  would  seem  as  if  forfeiture  by  publication  would  not  be 
complete  until  180  days  after  the  first  insertion  of  the  printed  notice.135 
In  the  case  of  personal  notice  in  writing,  the  delinquent  co-owner 
would  be  'divested  of  all  interest  at  the  end  of  90  days  from  date  of 
service. 

Where  several  claims  are  owned  by  the  same  co-tenants,  and  there 
is  delinquency  as  to  the  work  on  several  or  all  of  the  claims,  there 
is  nothing  in  the  statute  to  prevent  all  the  delinquencies  from  be- 
ing covered  by  one  notice;  but  in  such  case  it  seems  that  the  notice 
is  void  if  it  does  not  show  the  amount  of  money  spent  upon  each 
claim,  or,  if  it  was  spent  on  one  or  more  of  a  group  for  all,  or  outside 
the  boundaries  of  the  claim  or  group,  does  not  state  the  facts  show- 
ing that  the  work  done  related  directly  to  the  claims  and  obviously 
tended  to  their  development.136 

The  notice  of  forfeiture  held  good  by  the  Supreme  Court  of  the 
United  States  in  Elder  v.  Horseshoe  Min.  &  Mill.  Co.137  was  as  fol- 
lows : 

"Notice  of  Forfeiture. 

"To  Rufus  Wilsey,  His  Heirs,  Administrators,  and  to  All  Whom  It 

may  Concern: 

"You  are  hereby  notified  that  I  have  expended  $800  in  labor  and 
improvements  upon  the  Golden  Sand  lode,138  *  *  4  as  will  ap- 

83  Pac.  376.    To  cover  the  case  of  a  co-tenant  dying  while  notice  by  publica- 
tion is  being  served  on  him,  it  would  seem  well  to  address  the  notice  to 
him  by  name  and  to  add  the  clause  approved  in  ELDER  v.  HORSESHOE 
MIN.  &  MILL.  CO.,  194  U.  S.  248,  24  Sup.  Ct.  643,  48  L,  Ed.  960. 
isi  HAYNES  v.  BRISCOE,  29  Colo.   137,  67  Pac.  156. 

132  Id. 

134  ELDER  v.  HORSESHOE  MIN.  &  MILL.   CO.,  194  U.  S.  248,  24  Sup. 
Ct.  643,  48  L.  Ed.  960. 

135  See  Badger  Gold  Min.   &  Mill.   Co.  v.   Stockton   Gold  &  Copper  Min. 
Co.  (C.  C.)  139  Fed.  838. 

136  HAYNES  v.  BRISCOE,  29  Colo.  137,  67  Pac.  156. 

137  194  U.  S.  248,  24  Sup.  Ct.  643,  48  L.  Ed.  960. 

is*  Here  was  inserted  evidently  a  description  of  the  claim,  with  a  state- 


296  ANNUAL   LABOR   OR   IMPROVEMENTS    REQUIREMENTS.     (Ch.    16 

pear  by  certificate  filed  on  January  2,  1889,  in  the  office  of  the  reg- 
ister of  deeds  of  said  Lawrence  county,  in  order  to  hold  said  premises 
under  the  provisions  of  the  laws  of  the  United  States  and  of  this 
territory;189  that  being  $100  per  year,  the  amount  required  to  hold 
the  claim  for  the  years  ending  December  31,  1880,  December  31,  1881, 
December  31,  1882,  December  31,  1883,  December  31,  1884,  Decem- 
ber 31, 1885,  December  31,  1886,  and  December  31,  1887.  And  if,  with- 
in ninety  days  after  this  notice  by  publication,  you  fail  or  refuse  to 
contribute  your  proportion  ($400,  being  $50  for  each  of  said  years), 
your  interests  in  said  claim  will  become  the  property  of  the  subscrib- 
er under  section  2324,  Revised  Statutes  of  the  United  States. 

"Charles  H.  Havens."  14° 

Which  Co-Owners  Acquire  the  Delinquent  Co-Owner's  Interest. 

The  statute  says  that  the  interest  of  the  delinquent  co-owner,  when 
forfeited,  "shall  become  the  property  of  his  co-owners  who  may 
have  made  the  required  expenditures."  That  would  seem  unquestion- 
ably to  mean  that  if  one  of  several  co-owners  either  performs,  or  has 
performed  for  him,  all  the  annual  labor,  and  one  co-tenant  is  delin- 
quent, the  other  co-tenants  cannot  compel  the  diligent  co-tenant  to 
let  them  share  in  the  forfeited  interest,  unless  the  American  doctrine 
of  the  fiduciary  relation  between  tenants  in  common  is  consistent 
with  this  particular  statute  and  prevents  the  diligent  co-tenant  from 
getting  this  advantage.  It  would  seem,  however,  that  the  same  rea- 
soning which  makes  the  statute  constitutional  justifies  us  in  saying 
that  the  forfeiture  gives  the  interest  forfeited  to  those  only  who  per- 
formed the  labor,  or  had  it  performed,  in  place  of  the  delinquent  co- 
owner. 

Forfeitures  Not  Favored. 

With  reference  to  this  forfeiture  statute  it  should  always  be  borne 
in  mind  that  the  proceeding  is  so  summary,  and  forfeitures  are  so 
odious  to  the  law,  that  the  exact  situation  contemplated  must  exist 
before  the  statute  can  apply,  and  that  the  burden  of  proof  is  upon  the 
forfeiting  party  to  establish  all  necessary  facts.141  For  instance, 
a  purchaser  at  execution  sale,  who  has  not  received  a  sheriff's  deed, 
and  therefore  is  not  a  co-owner  at  the  time  of  the  delinquency,  can- 
not forfeit  an  owner's  undivided  part  interest  under  the  statute.142 

ment  of  the  mining  district  and  county  in  which  it  was  situated.  There 
was  probably  a  reference  to  the  recorded  location  certificate  by  date  of  rec- 
ord, book,  and  page. 

139  NOW,  of  course,  a  state. 

140  Quoted  in  Elder  v.  Horseshoe  Min.  &  Mill.  Co.,  9  S.  D.  636,  70  N.  W. 
1060,  1061,  62  Am.   St.  Rep.  895. 

141  TURNER  v.  SAWYER,  150  U.  S.  578,  14  Sup.  Ct.  192,  37  L.  Ed.  1189. 
1*2  TURNER   v.    SAWYER,    150  U.    S.   578,    14   Sup.    Ct.    192,   37   L.   Ed. 


§§  89-90)  FORFEITURE    TO    CO-OWNER.  297 

Again,  a  stockholder  in  a  corporation  is  not  such  a  co-owner  with  the 
corporation  or  the  other  stockholders  as  to  entitle  him  to  forfeit  the 
corporation's  interest  for  failure  to  do  or  contribute  to  the  doing 
of  assessment  work.143  So,  of  course,  there  can  be  no  forfeiture  if 
the  party  is  in  fact  not  delinquent,144  or  if  the  party  seeking  to  for- 
feit did  no  work,145  or  not  the  required  work.***  So  a  co-own- 
er, who  did  the  assessment  work  before  the  act  of  1893,  suspend- 
ing the  annual  labor  requirement  for  that  year,  was  passed,  could 
not  forfeit  the  interest  of  the  previously  delinquent  co-owner,  who 
filed  the  certificate  called  for  by  that  act.146 

Whether  a  co-owner  who  performs  labor  and  acquires  a  right  to 
forfeit  the  delinquent  co-owner's  interest  loses  that  right  by  convey- 
ing away  his  own  undivided  interest  in  the  mining  claim,  and  whether 
his  grantee  gets  the  right  to  forfeit,  are  undecided  questions,  though 
it  has  been  decided  that  where  both  join  in  the  notice  there  is  a  for- 
feiture.147 The  case  of  Turner  v.  Sawyer  is  opposed  in  reasoning 
to  allowing  the  grantee  to  have  the  right,  as  he  was  not  co-owner 
at  the  time  the  labor  was  performed,  and  that  would  seem  to  be 
sound.148  Whether  the  grantor,  after  he  ceases  to  be  co-owner, 

1189,  where,  though  the  forfeiting  party  got  patent  in  his  own  name,  he 
was  held  in  equity  a  trustee  for  the  delinquent  party.  The  fact  that  the 
parties  having  a  right  to  forfeit  purport  to  convey  full  title  to  the  claim  to 
a  corporation  in  payment  for  substantially  all  its  capital  stock  will  not  it 
seems  prevent  a  forfeiture,  if  they  and  the  corporation  join  in  the  notice. 
BADGER  GOLD  MIN.  &  MILL.  CO.  v.  STOCKTON  GOLD  &  COPPER  MIN. 
CO.  (C.  C.)  139  Fed.  838. 

1*3  Repeater  and  Other  Lode  Claims,  35  Land  Dec.  Dep.  Int.  54. 

i**  Brundy  v.  Mayfield,  15  Mont.  201,  38  Pac.  1067.  Whether  or  not  one 
claimed  to  be  delinquent  has  in  fact  performed  or  contributed  his  share 
is  held  to  be  a  question  for  the  jury  in  Knickerbocker  v.  Halla  (C.  C.  A.) 
162  Fed.  318.  Where  one  who  purchases  at  a  void  judicial  sale  the  interest 
of  a  delinquent  co-owner  pays  the  portion  of  the  assessment  work  due  from 
the  latter,  there  can  be  no  forfeiture  against  the  previously  delinquent  co- 
owner,  and  the  purchaser  at  the  void  sale  is  not  subrogated  to  the  right 
to  forfeit,  Dye  v.  Crary  (N.  M.)  85  Pac.  1038,  9  L,  R.  A.  (N.  S.)  1136,  affirmed 
in  Crary  v.  Dye,  208  U.  S.  515,  28  Sup.  Ct.  360,  52  L.  Ed.  595.  An  unauthoriz- 
ed tender  by  a  friend  of  the  delinquent  of  the  amount  due  was  held,  after 
ratification  by  the  delinquent,  to  defeat  forfeiture,  in  Forderer  v.  Schmidt,  154 
Fed.  475,  84  C.  C.  A.  426.  There  can  be  no  forfeiture  after  issuance  of  re- 
ceiver's receipt  in  patent  proceedings.  Southern  Cross  Gold  Min.  Co.  v.  Sex- 
ton, 147  Cal.  758,  82  Pac.  423.  Nor  after  patent.  See  Stephens  v.  Golob,  34 
Colo.  429,  83  Pac.  381. 

i*5Delmoe  v.  Long,  35  Mont.  139,  88  Pac.  778. 

***  Golden  &  Cord  Lode  Mining  Co.,  31  Land  Dec.  Dep.  Int.  178. 

146ROYSTON  v.  MILLER  (C.  C.)  76  Fed.  50. 

i*7  BADGER  GOLD  MIN.  &  MILL.  CO.  v.  STOCKTON  GOLD  &  COP- 
PER MIN.  CO.  (C.  C.)  139  Fed.  838. 

1*8  see  Golden  &  Cord  Lode  Mining  Co.,  31  Land  Dec.  Dep.  Int.  178. 


298  ANNUAL  LABOR  OB   IMPROVEMENTS   REQUIREMENTS.      (Ch.  16 

could  forfeit,  depends  upon  the  nature  of  the  right.  Treating  it  as 
analogous  to  a  right  of  entry  for  condition  broken  retained  by  the 
grantor  of  a  fee,  there  would  seem  to  be  no  reason  why  the  one  who 
was  co-owner  when  he  performed  the  labor  should  not  forfeit,  de- 
spite the  conveyance  of  his  undivided  interest.149  For  the  same  reason 
Messrs.  Morrison  and  De  Soto  would  seem  to  be  right  in  saying  that 
"when  a  co-owner  is  delinquent,  but  the  party  who  has  made  the  ex- 
penditure afterwards  associates  with  him  in  developing  the  claim,  it 
would  probably  be  considered  a  waiver  of  the  forfeiture."  15° 

State  Statutes  on  Forfeitures  to  Co-Owners. 

There  are  a  few  state  statutes  on  forfeitures  to  co-owners.  The 
Colorado  statute  seems  to  apply  only  to  placer  claims,  and  has  no  pro- 
visions about  recording  papers,  or  designating  what  shall  be  evidence 
of  forfeiture.151  The  statutes  of  Arizona,  California,  and  Nevada, 
however,  call  for  the  recording  of  the  notice  of  forfeiture,  or  a  copy, 
accompanied  by  affidavit  of  service,  and  provide  that  the  recorded 
papers  shall  be  evidence  of  the  acquisition  of  title  by  the  co-owners.152 
However  ineffectual  the  main  parts  of  the  state  forfeiture  to  co-own- 
er statutes  may  be,  because  they  cover  the  same  ground  as  the  fed- 
eral statute,  and  the  latter  must  control,  it  seems  as  if  the  provisions 
calling  for  record  of  the  notice  and  affidavit,  and  giving  evidential 
force  to  the  recorded  papers,  are  perfectly  valid. 

It  need  only  be  added  that  in  order  to  keep  the  record  title  in  prop- 
er shape,  and  to  give  notice  of  forfeiture  that  will  bind  parties  sub- 
sequently dealing  with  the  delinquent  co-owner,  the  notice  served  and 
affidavit  of  personal  service  or  service  by  publication  should  every- 
where be  recorded.153 

Partitioned  Claims. 

The  courts  some  day  will  have  to  pass  on  the  question  of  the 
effect  of  this  forfeiture  statute  on  claims  voluntarily  or  involun- 
tarily partitioned.  No  matter  into  how  many  smaller  pieces  an  un- 
patented  mining  claim  is  cut  by  conveyances  of  the  owners  or  court 
decrees,  the  annual  labor  for  the  claims  as  located  must  be  performed. 
Unless  it  is,  the  whole  claim  and  the  parts  of  each  grantee  carved  out 

i*»  See  Badger  Gold  Min.  &  Mill.  Co.  v.  Stockton  Gold  &  Copper  Min. 
Co.  (O.  C.)  139  Fed.  838. 

150  Morrison's  Mining  Rights  (13th  Ed.)   116. 

lei  Mills'  Ann.  St.  Colo.  §  3137. 

162  Rev.  St.  Ariz.  1901,  §§  3245-3249;  St.  Cal.  1891,  p.  219,  c.  155;  Comp. 
Laws  Nev.  1900,  §  218. 

IBS  in  the  absence  of  local  legislation  calling  for  one,  no  record^  of  the 
forfeiture  proceedings  need  be  made  or  kept  Riste  v.  Morton,  20  Mont. 
139,  49  Pac.  656. 


§§  89-90)  FORFEITURE   TO   CO-OWNER.  299 

of  it  are  open  to  relocation.154  The  grantee,  therefore,  of  a  100x300- 
foot  piece,  say,  must  see  that  $100  worth  of  work  is  done  on  the  claim 
annually,  or  his  own  piece  can  be  relocated.  Suppose  that  his  gran- 
tors and  the  grantees  of  other  pieces  of  the  claim  lie  back  and  make 
him  perform  the  labor;  can  he  forfeit  their  interests  in  the  claim? 
Are  his  grantors,  the  other  grantees,  and  himself  "co-owners"  within 
the  meaning  of  this  forfeiture  to  co-owner  statute  ?  It  certainly  seems 
as  if  they  should  be  held  to  be  co-owners  withia  the  statutes,  but  the 
matter  has  never  been  litigated.  One  New  Mexico  case  155  has  been 
supposed  to  bear  on  this  question;156  but  a  careful  scrutiny  of  that 
case  seems  to  show  merely  a  decision  that  under  the  New  Mexico 
statutes  of  the  time  a  locator  who  granted  away  parts  of  his  located 
ground  before  he  sunk  his  discovery  shaft  gave  his  grantees  nothing 
but  the  right  to  perfect  locations  of  their  own  within  the  original 
claim's  boundary  lines,  and  hence  gave  them  nothing  that  would  avail 
them  without  the  sinking  of  discovery  shafts  of  their  own.157  There 
would  se«m  to  be  nothing  in  reason  or  authority  in  the  way  of  constru- 
ing the  word  "co-owners"  in  the  forfeiture  statute  to  cover  grantors 
and  grantees  of  subdivisions  of  the  original  claim,  and  their  case  is 
certainly  within  the  mischief  sought  to  be  remedied  by  the  act.158 

IB*  See  CONN  v.  OBERTO,  32  Colo.  313,  76  Pac.  369,  where  a  grantee  of 
part  of  a  claim  was  held  to  be  cut  out  by  the  abandonment  of  the  rest  by 
the  grantors.  See,  also,  Oberto  v.  Smith,  37  Colo.  21,  86  Pac.  86. 

IBS  Zeckendorf  v.  Hutchison,  1  N.  M.  476. 

156  See  1  Snyder  on  Mines,  §  484. 

isTThe  proposition  of  Mr.  Snyder,  supra,  that  "where  several  persons, 
who  have  located  a  claim  jointly,  afterwards  partition  it,  each  taking  a 
portion  thereof,  work  done  thereafter  upon  one  of  the  segregated  pieces 
will  not  be  considered  as  work  done  upon  any  of  the  other  pieces,"  is  not 
supported  by  the  New  Mexico  case,  the  only  one  he.  cites,  and  must  be 
wholly  wrong.  Since  the  partitioned  part  of  each  will  be  forfeited  unless 
$100  worth  of  work  is  done  on  the  claim  as  located,  the  forfeiture,  so  far  as 
relocation  is  concerned,  will  naturally  be  avoided  if  $100  worth  of  work  is 
done  anywhere  on  the  original  location.  But  compare  Merced  Oil  Min.  Co. 
v.  Patterson  (Cal.)  96  Pac.  90. 

iss  See  Morrison's  Mining  Rights  (13th  Ed.)  97.  A  recent  case  relating  to 
discovery  (Merced  Oil  Min.  Co.  v.  Patterson  [Cal.]  96  Pac.  90)  suggests  a 
query  whether  annual  work  done  by  the  grantee  of  part  of  a  claim  will  in- 
ure to  the  benefit  of  the  whole  claim.  The  implication  of  that  case  is  that 
it  would  not,  but  it  is  believed  that  the  better  doctrine  is  that  it  would. 


300  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.  (Ch.  17 


CHAPTER  XVII. 

THE    ABANDONMENT,    FORFEITURE,    AND    RELOCATION    OF    LODE 
AND  PLACER  MINING  CLAIMS. 

91-92.    The  Distinction  between  Abandonment  and  Forfeiture. 

93.  The  Burden  of  Proof  in  Cases  of  Abandonment  and  of  Forfeiture. 

94.  The  Kinds  of  Relocation. 

95.  Relocations  by  Third  Persons. 
95a.  Resumptions  of  Work. 
95b.            Premature  Relocations. 

96.  Relocations  by  the  Forfeiting  Owners. 
96a.  Relocations  by  Amendment. 

97.  The  Forfeiture  of  Improvements. 

So  closely  connected  with  the  subject  of  annual  labor  as  practical- 
ly to  be  part  of  it  is  the  subject  of  the  relocation  of  mining  claims. 
But  as  relocation  may  follow  an  abandonment  of  a  claim,  as  well  as 
follow  a  forfeiture  of  it,  and  as  the  locator  may  himself  desire  to  re- 
locate his  own  claim,  so  as  to  take  in  ground  not  forfeited  to  anybody 
else,  the  subject  of  relocation  deserves  a  chapter  to  itself. 

THE  DISTINCTION  BETWEEN  ABANDONMENT  AND  FORFEITURE. 

91.  An  "abandonment"  of  a  mining  claim  is  the  voluntary  giving  up 

of  the  possessory  title  with  the  intention  not  to  reclaim  it, 
while  a  "forfeiture"  of  a  mining  claim  is  the  loss  of  the  pos- 
sessory title  because  some  third  person  has  located  the  land 
for  failure  of  the  forfeiting  owner  to  perform  the  condition 
of  annual  labor  required  for  its  retention. 

92.  While   abandonment   is  essentially  instantaneous,   and  may   take 

place  despite  the  performance  of  the  annual  labor,  abandon- 
ment, like  forfeiture,  requires  relocation  by  a  third  person  to 
make  it  final.  Abandonment  may  not  be  made  a  means  to 
evade  the  annual  labor  requirement. 

The  first  thing  to  do  is  to  distinguish  between  abandonment  and 
forfeiture.  The  words  are  often  usedjn  the  mining  cases  and  stat- 
utes as  synonyms,1  but  there  is  a  clear  distinction  between  them.  The 

i  In  BLACK  v.  ELKHORN  MIN.  CO.,  163  U.  S.  445,  450,  16  Sup.  Ct. 
1101,  41  L.  Ed.  221,  for  instance,  the  court  says  that  a  locator's  interest  in 
the  claim  may  also  be  "forfeited  by  his  abandonment."  In  another  case 
in  which  the  trial  judge,  in  instructing  the  jury,  used  the  word  "abandon- 
ment," where  he  meant  "forfeiture,"  it  was  held  not  to  be  prejudicial  er- 
ror. LITTLE  DORRIT  GOLD  MINING  CO.  v.  ARAPAHOE  GOLD  MIN. 
CO.,  30  Colo.  431,  71  Pac.  389. 


§g  91-92)      ABANDONMENT   AND   FORFEITURE   DISTINGUISHED.  301 

following  statement  of  the  California  court  expresses  that  distinction : 
"The  term  'forfeiture/  as  used  in  our  mining  customs  and  codes, 
means  the  loss  of  a  right  to  mine  a  particular  piece  of  ground,  previ- 
ously acquired,  by  neglect  or  failure  to  comply  with  the  rules  and 
regulations  of  the  bar  or  diggings  in  which  the  ground  is  situated, 
prescribing  the  acts  which  must  be  done  in  order  to  continue  and  keep 
alive  that  right  after  it  has  been  once  acquired.  As  a  defense  it  is 
entirely  distinct  and  separate  from  that  of  abandonment.  It  involves 
no  question  of  intent,  but  rests  entirely  upon  the  mining  rules  and 
regulations,  and  involves  only  the  question  whether,  in  point  of  fact, 
those  rules  and  regulations  have  been  observed  by  the  party  seeking 
to  maintain  or  perpetuate  the  right,  regardless  of  what  his  intentions 
may  have  been ;  whereas  the  principal  question  involved  in  the  defense 
of  abandonment  is  one  of  intention-.  Was  the  ground  left  by  the  loca- 
tor without  any  intention  of  returning,  or  making  any  future  use  of 
it?  If  so,  an  abandonment  has  taken  place  upon  common-law  prin- 
ciples, independent  of  any  mining  rule  or  regulation,  and  the  ground 
has  become  once  more  publici  juris  and  open  to  the  occupation  of  the 
next  comer."  2 

The  same  distinction  is  noted  in  the  following  language  from  a 
Montana  case :  "  'Abandonment/  as  applied  to  mining  claims  held  by 
location  merely,  takes  place  only  when  the  locator  voluntarily  leaves 
his  claim  to  be  appropriated  by  the  next  comer,  without  any  intention 
to  retake  or  claim  it  again,  and  regardless  of  what  may  become  of  it 
in  the  future.  A  'forfeiture'  takes  place  by  operation  of  law,  without 
regard  to  the  intention  of  the  appropriator,  whenever  he  neglects  to 
preserve  his  rights  by  complying  with  the  conditions  imposed  by  law ; 
that  is,  to  make  the  required  annual  expenditure  upon  the  claim  with- 
in the  time  allowed.  The  former  involves  an  inquiry  of  fact  as  to 
the  intention  as  well  as  the  act.  In  regard  to  the  latter  the  inquiry  is : 
Has  the  required  expenditure  been  made  as  the  law  commands  ?"  3 

The  reason  why  a  mining  claim  can  be  abandoned  is  that  the  title 
is  possessory.  It  is  only  the  legal  title  that  technically  may  not  be 
abandoned.4  "The  doctrine  of  abandonment  only  applies  where  there 

2  St.  John  v.  Kidd,  26  Cal.  263,  271,  272. 

«  McKAY  v.  McDOUGALL,  25  Mont  258,  262,  64  Pac.  669,  670,  87  Am. 
St.  Rep.  395. 

*  The  notion  that  a  patented  claim  may  be  abandoned  in  such  a  way  as  to 
make  the  land  unappropriated  public  domain  seems  to  exist  in  Sharkey  v. 
Candiani,  48  Or.  112,  85  Pac.  219,  7  L.  R.  A.  (N.  S.)  791,  but  cannot  be  sup- 
ported. For  a  case  where  coal  excepted  from  a  deed  was  held  not  aban- 
doned, see  Huss  v.  Jacobs,  210  Pa.  145,  59  Atl.  991.  It  seems  that  a  reloca- 
tion by  the  original  locator  may  be  abandoned  by  him  without  his  necessarily 
abandoning  the  original  location.  See  WETZSTEIN  v.  LARGEY.,  27  Mont 


302  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.  (Ch.  17 

has  been  a  mere  naked  possession  without  title.  The  right  of  the 
occupant  originating  in  mere  possession  may,  as  a  matter  of  course,  be 
lost  by  abandonment.  Where  there  is  title,  to  preserve  it  there  need 
be  no  continuance  of  possession,  and  the  abandonment  of  the  latter 
cannot  affect  the  rights  held  by  virtue  of  the  former."  B 

It  may  be  well  to  repeat  here  that  the  reason  why  a  mining  claim 
may  be  forfeited  for  failure  to  do  annual  labor  rests  on  a  different 
basis.  Forfeiture  takes  place  because  the  United  States  has  a  right  to 
impose  what  conditions  it  sees  fit  upon  the  disposition  of  its  own  prop- 
erty to  purchasers.  It  has  even  been  held  that  the  United  States, 
unlike  private  persons,  may  pass  the  legal  fee  in  land  to  its  grantee, 
and  yet  provide  that,  while  he  may  devise  it,  he  may  not  sell  or  con- 
vey it,  except  for  the  term  of  two  years  from  time  to  time.8  In  the 
case  so  holding  the  court  said:  "The  counsel  of  defendants  further 
insist  that  the  condition  of  nonalienation  imposed  upon  the  fee  sim- 
ple contained  in  the  donative  act  is  repugnant  to  the  nature  of  the 
estate  and  is  therefore  void.  That  old  and  well-settled  rule  of  the 
common  law  does  not  apply  to  this  legislative  grant.  The  sovereign 
power  of  the  Legislature  is  superior  to  the  immemorial  rules  and  us- 
ages of  the  common  law.  The  legislative  power  of  the  state  is  re.- 
stricted  only  by  the  state  and  federal  Constitutions,  and  it  may  change 
the  rules  of  the  common  law  whenever  such  alterations  are  deemed 
best  for  the  general  welfare  and  do  not  conflict  with  the  constitutional 
rights  of  citizens."  7 

While  abandonment  is  not  as  common  as  forfeiture,  it  is  important 
to  find  out  what  it  is.  Mr.  L/indley  is  inclined  to  believe  that  the  Su- 
preme Court  of  the  United  States  never  ought  to  have  recognized  such 
a  thing  as  abandonment,  because  a  mining  location  has  become  vested 
with  so  many  attributes  as  to  be  too  like  the  legal  title  to  real  prop- 
erty for  the  doctrine  to  be  desirable.8  The  fact  remains,  however, 
that  the  Supreme  Court  of  the  United  States  has  recognized  the  doc- 
trine, and  has  declared  that  "it  cannot  be  doubted  that  an  actual  aban- 
donment of  possession  by  a  locator  of  a  mining  claim,  such  as  would 

212,  70  Pac.  717.  A  locator  may  abandon  part  of  his  location  without  for- 
feiting his  right  to  the  balance  of  the  claim.  TYLER  MINING  CO.  T.  SWEE- 
NEY, 54  Fed.  284,  4  C.  C.  A.  329.  See  Hurley  v.  Ennis,  2  Colo.  300.  To  patent 
the  part  of  one's  claim  containing  the  discovery  shaft  is  not  to  abandon  the  un- 
patented  part.  MILLER  v.  HAMLEY,  31  Colo.  495,  74  Pac.  980.  But  see 
BROWN  v.  GURNEY,  201  U.  S.  184,  26  Sup.  Ct.  509,  50  L.  Ed.  717. 

s  Ferris  v.  Coover,   10  Cal.  589,  631. 

e  Sniythe  v.  Henry  (C.  C.)  41  Fed.  705. 

7  Smythe  v.  Henry  (C.  C.)  41  Fed.  707.  See  Farrington  v.  Wilsom,  29  Wis. 
383. 

»2  Lindley  on  Mines,  p.  1196,  §  642. 


§§  91-92)      ABANDONMENT.    AND   FORFEITURE    DISTINGUISHED.  303 

work  an  abandonment  of  any  other  easement,  would  terminate  all 
the  right  of  possession  which  the  locator  then  had."  9 

Abandonment  a  Question  of  Ascertcwned  Intention. 

The  first  thing  to  notice  about  abandonment  is  that  whether  or 
not  it  has  taken  place  is  a  question  of  fact  for  the  jury.10  Where 
abandonment  occurs,  it  is  because  of  an  ascertained  intention  to  aban- 
don, and  the  abandonment  is  instantaneous.11  "Abandonment  is  a 
matter  of  intention,  and  takes  place  whenever  the  claimant  of  a  min- 
ing claim  goes  away  with  no  intention  of  returning  to  it,  and  with  the 
intention  of  leaving  it  open  for  the  next  applicant."  12  It  may  take 
place  even  though  the  annual  labor  has  been  done,  or  the  period  for 
doing  it  has  not  expired,13  and  does  not  depend  upon  entry  by  anybody 
else,  though  such  entry  and  a  relocation  are  necessary  to  prevent  re- 
vival of  the  claim  by  resumption  of  work.  "The  question  of  abandon^ 
ment  can  never  arise,  except  where  there  has  been  possession,  and  then 
the  animus  revertendi  is  the  simple  test."  14 

Forfeiture,  on  the  other  hand,  is  not  dependent  upon  the  intent  of 
the  locator,  who  loses  his  interest.    It  is  not  complete  until  there  has  • 
been  an  entry  by  some  one  else  with  intent  to  relocate  the  property,15 
and  under  some  state  decisions  is  not  complete  even  then,  if  the  loca- 
tor resumes  work  before  the  relocation  is  finished.16 

»  BLACK  v.  ELKHORN  MIN.  CO.,  163  U.  S.  445,  450,  16  Sup.  Ct.  1101, 
1103,  41  L,  Ed.  221. 

10  TAYLOR  v.  MIDDLETON,  67  Cal.  656,  8  Pac.  594;    Weill  v.  Lucerne 
Min.   Co.,    11   Nev.   200;     MARSHALL  v.    HARNEY   PEAK  TIN   MINING, 
MILLING  &  MFG.  CO.,   1   S.  D.  350,  47  N.  W.  290;    Davis  v.  Dennis,  43 
Wash.  54,  85  Pac.  1079. 

11  Davis  v.  Butler,  6  Cal.  510;    Waring  v.  Crow,  11  Cal.  366;    Derry  v. 
Ross,  5  Colo.  295.     See  St.  John  v.  Kidd,  26  Cal.  263;    Oreamuno  v.  Uncle 
Sam  Gold  &  Silver  Min.  Co.,  1  Nev.  215. 

12  MOFFAT   v.    BLUE   RIVER   GOLD   EXCAVATING   CO.,   33   Colo..  142, 
148,  80  Pac.  139,  141.     See  Conn  v.  Oberto,  32  Colo.  313,  76  Pac.  369;   Buffalo 
Zinc  &  Copper  Co.  v.  Crump,  70  Ark.  525,  69  S.  W.  572,  91  Am.  St.  Rep.  87. 
Abandonment  can  be  found  only  on  clear  and  convincing  proof  of  intent  to 
abandon.     Loeser  v.  Gardiner,  1  Alaska,  641.     It  is  negatived  by  continuing 
work  after  an  ineffectual  attempt  to  patent  the  claim.     PEORIA  &  COLO- 
RADO MILL.  &  MIN.  CO.  v.  TURNER,  20  Colo.  App.  474,  79  Pac.  915.     An 
abandoned  claim  becomes  part  of  the  public  domain,  subject  to  sale  and  dis- 
position by  the  government.    Migeon  v,  Montana  Cent.  R,  Co.,  77  Fed.  249,  23 
C.  C.  A.  156. 

is  Farrell  v.  Lockhart,  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed.  . 

i*  Stone  v.  Geyser  Quicksilver  Min.  Co.,  52  Cal.  315,  318;  Davis  v.  Den- 
nis, 43  Wash.  54,  85  Pac.  1079. 

is  LITTLE  GUNNELL  MINING  CO.  v.  KIMBER,  1  Morr.  Min.  Rep.  (U. 
S.)  536,  539,  Fed.  Cas.  No.  8,402. 

is  See  PHARIS  v.  MULDOON,  75  Cal.  284,  17  Pac.  70;  Lacey  v.  Wood- 
ward, 5  N.  M.  583,  25  Pac.  785.  The  doctrine  of  McKAY  v.  McDOUGALL, 


304  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.  (Ch.  17 

The  close  connection  between  abandonment  and  intention  is  shown 
in  a  Colorado  case.  There  the  defendant  purchased  a  mining  claim 
December  26,  1890,  and  shortly  afterwards  abandoned  it,  because  he 
could  not  perform  within  the  year  the  necessary  assessment  work. 
The  defendant's  son  thereupon,  on  January  31,  1891,  relocated  the 
claim  as  an  abandoned  lode;  but  the  relocation  was  invalid,  because 
he  gave  the  date  of  discovery  as  December  20,  1890.  Thereafter  de- 
fendant's son  conveyed  to  defendant,  and  still  later  plaintiff  located  the 
ground.  It  was  held  that  the  defendant  could  not  recall  his  abandon- 
ment by  claiming  that  the  relocation  was  to  protect  his  rights  under 
the  original  claim,  and  thus  defeat  plaintiff's  location.17 

The  question  of  abandonment  is  thus  one  of  intent,  to  be  determined 
as  a  fact  from  the  conduct  of  the  mining  claim  owner.  It  may  be 
proved  by  the  testimony  of  the  locator  that  he  abandoned  the  claim 
at  the  time  of  the  subsequent  location,18  and  one  of  several  locators 
may  ratify  an  abandonment  made  to  a  third  person  by  the  others.19 
The  fact  is  that,  "in  order  to  sustain  an  allegation  of  abandonment,  it 
must  appear  that  there  was  a  leaving  of  the  claim  without  any  inten- 
tion of  making  any  further  use  of  it."  20  That  is  why  an  abandon- 
ment cannot  be  predicated  upon  the  mere  fact  of  a  relocation  being 
attempted.21  Accordingly,  where  the  plaintiffs  were  driven  away 
from  their  claims  by  hostile  Indians,  but  left  their  tools  at  another 
mine  in  the  vicinity,  and  did  not  return  prior  to  the  location  by  the 
defendants,  partly  because  of  the  supposed  continuance  of  Indian  hos- 
tilities, and  partly  because  of  the"  required  expenditure  of  money,  and 
because  they  thought  they  had  performed  sufficient  work  upon  the 
claims  to  entitle  them  to  hold  them,  it  was  held  that  these  facts 
negatived  that  intent  on  the  part  of  the  plaintiffs  necessary  to  con- 
stitute an  abandonment.22 

25  Mont.  258,  64  Pac.  669,  87  Am.  St.  Rep.  395,  has  been  negatived  by  the 
Montana  act  of  1907.  Laws  Mont.  1907,  p.  21. 

if  NILES  v.  KENNAN,  27  Colo.  502,  62  Pac.  360.  See  Davis  v.  Butler, 
6  Cal.  510.  Where  a  locator  went  away  to  be  gone  some  years,  and  gave 
up  all  hope  of  returning  to  the  claim,  and  did  not  arrange  for  the  perform- 
ance of  the  annual  labor,  there  was  held  to  be  a  proper  showing  of  aban- 
donment. Harkrader  v.  Carroll  (D.  C.)  76  Fed.  474. 

is  Carter  v.  Bacigalupi,  83  Cal.  187,  23  Pac.  361. 

i»  Conn  v.  Oberto,  32  Colo.  313,  76  Pac.  369;  Oberto  v.  Smith,  37  Colo. 
21,  86  Pac.  86. 

20  Bell  v.  Bed  Rock  Tunnel  &  Mining  Co.,  36  Cal.  214.     See  note  12,  supra. 

21  Weill  v.  Lucerne  Min.  Co.,  11  Nev.  200. 

22MORENIIAUT  v.  WILSON,  52  Cal.  263.  So  abandonment  cannot  be 
charged  where  a  locator  in  possession  is  disseised.  Lockhart  v.  Wills,  9  N. 
M.  2G3,  50  Pac.  318.  See  Buffalo  Zinc  &  Copper  Co.  v.  Crump,  70  Ark.  525,  69 
S.  W.  572,  91  Am.  St.  Rep.  87.  On  the  other  hand,  a  co-owner  who  attempts  to 


§§  91-92)      ABANDONMENT   AND   FORFEITURE   DISTINGUISHED.  305 

Where  the  authority  and  intention  to  abandon  are  clear,  one  locator 
may  abandon  for  all  the  locators.  For  instance,  in  an  Arizona  case  a 
mining  claim  was  located  in  the  name  of  four  persons.  The  one  who 
located  it,  and  who  was  the  only  one  who  had  anything  to  do  with  it, 
testified  that  after  working  it  awhile  he  decided  that  it  was  no  good, 
destroyed  the  location  notice  monument,  and  went  away,  with  the 
intention  of  having  nothing  further  to  do  with  the  claim.  That  was 
held  to  be  an  abandonment  for  all  the  locators,  and  to  authorize  a 
relocation  prior  to  the  time  a  forfeiture  could  have  been  made.23 

Abandonment,  like  forfeiture,  seems  to  require  some  act  of  a  third 
party  to  make  it  final ;  for  unless  there  is  a  relocation  by  a  third  party 
or  a  conclusive  acceptance  of  an  abandonment  to  a  co-owner,  it  seems 
that  the  one  who  has  abandoned  may  revive  his  claim  by  resuming 
work.24.  At  least,  it  never  has  been  decided  that  he  may  not  do  so. 
The  chief  difference  to-day,  therefore,  between  forfeiture  and  aban- 
donment, would  seem  to  lie  in  the  fact  that  abandonment  may  take 
place  even  though  the  annual  labor  has  been  performed. 

Abandonment  must  be  Bona  Fide. 

An  abandonment,  to  be  effective,  must  not  be  a  subtertuge  to  en- 
able those  abandoning  to  get  around  the  annual  labor  requirement. 
Where,  to  evade  the  annual  labor  requirement,  and  to  save  competing 
with  others  for  a  relocation  on  January  1st,  the  locators,  prior  to 
January  1st,  announced  to  each  other  that  they  abandoned  the  claims, 
and  then  within  ten  minutes,  and  without  leaving  the  ground,  went 
through  the  form  of  locating  the  ground  in  the  name  of  an  absent 
friend  in  New  York,  the  court  refused  to  recognize  that  as  an  aban- 
donment, said  that  the  old  claim  continued,  and  held  that  since  the 
work  on  the  old  claim  had  not  been  done  the  claim  could  be  relocated 
by  others  on  January  1st.25  The  court  was  probably  unconsciously 
influenced  by  the  notion  put  forth  by  the  South  Dakota  court  in  decid- 
ing that  one  co-owner  attempting  to  exclude  another  co-owner  from 
a  mining  claim  by  a  relocation,  does  not  thereby  abandon  the  land, 


exclude  his  co-owner  by  a  relocation  does  not  thereby  make  an  abandonment. 
Hulst  v.  Doerstler,  11  S.  D.  14,  75  N.  W.  270.  And  an  invalid  attempted  re- 
location is  not  an  abandonment  of  a  prior  valid  location,  and  so  far  as  subse- 
quent locators  are  concerned  is  immaterial.  TEMESCAL  OIL  MINING  & 
DEVELOPMENT  CO.  v.  SALCIDO,  137  Cal.  211,  69  Pac.  1010. 

23  KINNEY  v.  FLEMING,  6  Ariz.  263,  56  Pac.  723.     See,  also,  Sharkey  v. 
Candiani,  48  Or.  112,  85  Pac.  219,  7  L.  R.  A.  (N.  S.)  791. 

24  Compare  OSCAMP  v.  CRYSTAL  RIVER  MIN.  CO.,  58  Fed.  293,  7  C.  C. 
A.  233. 

25  McCANN  v.  McMILLAN,  129  Cal.  350,  62  Pac.  31.    For  a  bona  fide  aban- 
donment, see  Roberts  v.  Date,  123  Fed.  238,  59  C.  C.  A.  242. 

COST.MIN.L.— 20 


306  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.  (Cll.  17 

namely,  that  "It  is  necessary  to  distinguish  between  a  manifest  inten- 
tion to  abandon  one's  rights  under  any  particular  location  and  an  in- 
tention to  abandon  the  property  itself."  26 

On  the  other  hand,  a  conditional  abandonment  will  be  treated  as 
an  absolute  one,  where  the  one  abandoning  had  the  secret  intent  to 
claim  a  mining  location  erroneously  included  in  a  sale  under  decree 
of  court  only  if  development  work  by  the  purchaser  should  render  it 
profitable  to  do  so.27 

Abandonment  of  Part  of  a  Location. 

It.  has  been  held  that  a  locator  may  abandon  part  of  his  claim 
without  losing  his  right  to  the  rest,28  and  that  if  he  patents  even  the 
part  of  the  claim  which  includes  the  discovery  shaft  he  does  not  there- 
by abandon  the  rest,  if  he  continues  to  possess  and  work  it.29 

Abandonment  by  Co-Tenants. 

It  has  been  declared  that  one  co-tenant  may  abandon  his  interest 
in  favor  of  his  co-tenants,  to  whom  it  will  inure,30  but  that  the  bare 
lapse  of  time,  short  of  the  statute  of  limitations  in  cases  of  adverse 
possession,  and  unaccompanied  by  other  circumstances,  would  be 
no  evidence  of  such  abandonment.31  Such  lapse  of  time,  with  other 
circumstances  tending  to  show  abandonment,  might,  of  course,  go  to 

26  HULST  v.  DOERSTLER,  11  S.  D.  14,  75  N.  W.  270.     See  Weill  v.  Lu- 
cerne Min.  Co.,  11  Nev.  200;  Ford  v.  Campbell  (Nev.)  92  Pac.  206.    Compare 
Omar  v.  Soper,  11  Colo.  380,  18  Pac.  443,  7  Am.  St.  Rep.  246.    Where  a  survey- 
or omitted  a  portion  of  the  claim  from  the  survey  by  mistake,  and  the  survey 
was  corrected  in  a  few  days  by  a  resurvey,  the  ground  omitted  from  the  first 
survey  was  not  abandoned.     Basin  Mining  &  Concentrating  Co.  v.  White,  22 
Mont.  147,  55  Pac.  1049. 

27  TREVASKIS  v.  PEARD,  111  Cal.  599,  44  Pac.  246.     See  Stone  v.  Geyser 
Quicksilver  Min.  Co.,  52  Cal.  315.    But  where  the  purchaser  of  a  mining  claim 
at  a  judicial  sale  has  equal  means  of  information  with  the  judgment  debtor  as 
to  the  invalidity  of  the  sale,  the  acquiescence  of  the  judgment  debtor  in  the 
invalid  sale  of  his  interest  in  the  claim  cannot  be  regarded  as  an  abandonment 
of  the  claim  and  an  election  to  accept  the  sale  as  a  disposition  of  his  property. 
Crary  v.  Dye,  208  U.  S.  515,  28  Sup.  Ct.  360,  52  L.  Ed.  595,  affirming  Dye  v. 
Orary  (N.  M.)  85  Pac.  1038,  9  L.  R.  A.  (N.  S.)  1136. 

28  Tyler  Mining  Co.  v.  Sweeney,  54  Fed.  284,  4  C.  C.  A.  329. 

29  MILLER  v.  HAMLEY,  31  Colo.  495,  74  Pac.  980. 

so  WORTHEN  v.  SID  WAY,  72  Ark.  215,  79  S.  W.  777.  But  see,  contra, 
Badger  Gold  Min.  &  Mill.  Co.  v.  Stockton  Gold  &  Copper  Min.  Co.  (C.  C.)  139 
Fedf  838. 

31  Mallett  v.  Uncle  Sam  Gold  &  Silver  Min.  Co.,  1  Nev.  188,  90  Am.  Dec.  484. 
The  interest  of  a  tenant  in  common  cannot  be  deemed  abandoned,  and  subject 
to  appropriation  by  strangers,  because  he  refuses  to  pay  his  part  of  the  an- 
nual expenditures.  Waring  v.  Crow,  11  Cal.  366;  Faubel  v.  McFarland,  144 
Cal.  717,  78  Pac.  261. 


§  93)  BURDEN    OF   PROOF.  307 

the  jury  to  establish  it.32  The  same  is  true  of  failure  to  contribute 
the  proportionate  share  of  assessment  work.33  In  all  cases  the  safest 
course  is  not  to  claim  abandonment,  but  to  proceed  under  the  federal 
statute  to  forfeit  the  co-owner's  interest.3* 


THE  BURDEN  OF  PROOF  IN  CASES  OF  ABANDONMENT  AND 

FORFEITURE. 

93.  The  burden  of  proof  in  reference  both  to  abandonment  and  to  for- 
feiture is  upon  the  one  asserting  that  the  abandonment  or  the 
forfeiture  has  taken  place. 

With  reference  to  abandonment  and  forfeiture  it  should  be  noticed 
that  the  burden  of  proof  is  upon  the  one  asserting 'that  the  abandon- 
ment or  forfeiture  has  taken  place.35  "A  forfeiture  cannot  be  estab- 

32  Mallett  v.  Uncle  Sam  Gold  &  Silver  Min.  Co.,  1  Nev.  188,  90  Am.  Dec.  484. 

33  Oreanauno  v.  Uncle  Sam  Gold  &  Silver  Min.  Co.,  1  Nev.  215,  where  the 
court  calls  abandonment  a  mixed  question  of  law  and  fact.    The  refusal  of 
a  co-tenant  to  pay  his  part  is  not  an  abandonment  per  se.    Waring  v.  Crow, 
11  Cal.  366. 

s*  A  recent  case  holds  that,  where  one  co-tenant  abandons  his  interest,  the 
other  co-tenants  do  not  get  it.  Badger  Gold  Min.  &  Mill.  Co.  v.  Stockton  Gold 
&  Copper  Min.  Co.  (C.  C.)  139  Fed.  838.  But  query?  See  Worthen  v.  Sidway, 
72  Ark.  215,  79  S.  W.  777. 

s  5  HAMMER  v.  GARFIELD  MIN.  &  MILL.  CO.,  130  U.  S.  291,  9  Sup.  Ot. 
548,  32  L.  Ed.  964;  McCULLOCH  v.  MURPHY  (C.  C.)  125  Fed.  147;  Buffalo 
Zinc  &  Copper  Co.  v.  Crump,  70  Ark.  525,  69  S.  W.  572,  91  Am.  St.  Rep.  87 ; 
Quigley  v.  Gillett,  101  Cal.  462,  35  Pac.  1040 ;  HARRIS  v.  KELLOGG,  117  Cal. 
484,  49  Pac.  708 ;  Emerson  v.  McWhirter,  133  Cal.  510,  65  Pac.  1036 ;  Callahan 
v.  James,  141  Cal.  291,  74  Pac.  853 ;  Goldberg  v.  Bruschi,  146  Oal.  708,  81  Pac. 
23 ;  Johnson  v.  Young,  18  Colo.  625,  34  Pac.  173 ;  Beals  v.  Cone,  27  Colo.  473, 
62  Pac.  948,  83  Am.  St.  Rep.  92 ;  LITTLE  DORRIT  GOLD  MIN.  CO.  v.  ARA- 
PAHOE  GOLD  MIN.  CO.,  30  Colo.  431,  71  Pac.  389;  Sherlock  v.  Leighton,  9 
Wyo.  297,  63  Pac.  580,  934 ;  Axiom  Min.  Co.  v.  White,  10  S.  D.  198,  72  N.  W. 
462;  South  End  Min.  Co.  v.  Tinney,  22  Nev.  19,  35  Pac.  89;  Wills  v.  Blain, 
5  N.  M.  238,  20  Pac.  798 ;  Providence  Gold  Min.  Co.  v.  Burke,  6  Ariz.  323,  57 
Pac.  641 ;  Dibble  v.  Castle  Chief  Gold  Min.  Co.,  9  S.  D.  618,  70  N.  W.  1055. 
See  Zerres  v.  Vanina  (C.  C.)  134  Fed.  610.  That  this  is  true,  even  though  the 
relocation  is  put  upon  the  ground  that  the  first  location  was  invalid,  is  held  in 
CUNNINGHAM  v.  PIRRUNG  (Ariz.)  80  Pac.  329.  See  Moffat  v.  Blue  River 
Gold  Excavating  Co.,  33  Colo.  142,  80  Pac.  139. 

Proof  that  for  two  years  work  was  not  done  on  the  claim  itself  shifts  the 
burden  of  going  forward  with  the  evidence.  SHERLOCK  v.  LEIGHTON,  9 
Wyo.  297,  63  Pac.  580,  934.  But,  if  the  work  be  shown  to  have  been  done  on 
the  claim,  the  presumption,  in  the  absence  of  evidence  to  the  contrary,  is  that 
it  was  done  by  the  owners  or  some  of  them.  Yarwood  v.  Johnson,  29  Wash. 
C43,  70  Pac.  123.  Where  defendant  was  in  possession  under  a  location  the 
validity  of  which  was  attacked  by  the  plaintiff  only  on  the  ground  of  a  pre- 
vious location  by  plaintiff,  the  burden  was  thrown  on  the  plaintiff  to  establish 


308  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.          (Ch.  11 

lished,  except  upon  clear  and  convincing  proof  of  the  failure  of  the 
former  owner  to  have  work  performed  or  improvements  made  to  the 
amount  required  by  law."  3.6  "After  a  valid  location  has  been  made, 
the  locator  need  not  keep  an  actual  possession  of  the  claim.  His  righl 
of  possession  will  continue  until  he  has  in  fact  abandoned  it,  or  has 
forfeited  it  by  failure  to  do  the  requisite  amount  of  work  within  the 
prescribed  time;  and  the  burden  of  proving  such  forfeiture  or  aban- 
donment is  on  him  who  would  attack  this  right."  3T 

The  burden  of  proof  thus  being  on  the  one  relying  on  abandonmen1 
or  forfeiture,  it  would  seem  on  principle  that  such  person  should  be 
required  to  plead  it.  The  cases,  however,  are  not  uniform.  In  Cali- 
fornia the  rule  seems  to  be  that  an  abandonment  by  plaintiff  may  b( 
shown  by  defendant  under  a  general  denial,  but  that  a  forfeiture  mus 
specially  be  pleaded.38  It  hardly  seems  desirable,  however,  to  dis- 
criminate in  that  way  between  an  abandonment  and  a  forfeiture,  ir 
view  of  the  fact  that  each  question  becomes  material  only  when  < 
relocation  has  taken  place.  That  a  forfeiture  must  be  specially  plead 
ed  where  it  is  relied  on  as  a  defense,  in  all  cases  except  in  an  advers< 
suit,39  seems  clear.40  "The  plea  of  forfeiture  is  in  the  nature  of  < 
confession  and  avoidance.  It  admits  a  prior  right  in  the  plaintiff 
which  would  have  continued  but  for  the  entry  and  location  by  the  de 
fendant,  which  under  the  mining  law  has  terminated  it.  One  wh( 
relies  upon  such  a  plea  must  set  forth  the  facts  upon  which  he  relic: 
to  overturn  the  prior  right  of  his  adversary,  and  establish  them  ty 
clear  and  convincing  proof.  He  assumes  the  burden  of  pleading  am 
proving  that  the  prior  owner  has  done  none  of  the  acts  which,  unde: 
the  statute,  he  may  do  to  preserve  his  right."  41 

the  perfection  of  his  location  under  the  state  as  well  as  federal  statutes,  ii 
COPPER  GLOBE  MIN.  CO.  v.  ALLMAN,  23  Utah,  410,  64  Pac.  1019. 

36  HAMMER  v.  GARFIELD  MIN.  &  MILL.  CO.,  130  U.  S.  291,  9  Sup.  Ct 
548,  32  L.  Ed.  964 ;  Wailes  v.  Davies  (C.  C.)  158  Fed.  667 ;  Goldberg  v.  Bruschi 
146  Cal.  708,  81  Pac.  23 ;  Gear  v.  Ford,  4  Cal.  App.  556,  88  Pac.  600.  See  Thorn 
son  v.  Allen,  1  Alaska,  636;  Loeser  v.  Gardiner,  1  Alaska,  641;  Strasburge 
v.  Beecher,  20  Mont.  143,  49  Pac.  740. 

3T  HARRIS  v.  KELLOGG,  117  Cal.  484,  489,  49  Pac.  708,  709.  See  Quigle; 
v.  Gillett,  101  Cal.  462,  35  Pac.  1040. 

ss  MORENHAUT  v.  WILSON,  52  Cal.  263;  Willson  v.  Cleaveland,  30  Cal 
192;  Bell  v.  Bed  Rock  Tunnel  &  Mining  Co.,  36  Cal.  214;  TREVASKIS  \ 
PEARD,  111  Cal.  599,  44  Pac.  246. 

s  9  As  to  the  rule  in  adverse  suits,  see  STEEL  v.  GOLD  LEAD  M.  CO.,  1! 
Nev.  80,  1  Pac.  448 ;  Bryan  v.  McCaig,  10  Colo.  309,  15  Pac.  413 ;  Campbell  \ 
Taylor,  3  Utah,  325,  3  Pac.  445. 

40  BISHOP  v.  BAISLEY,  28  Or.  119,  41  Pac.  936;  Renshaw  v.  Switzer,  < 
Mont  464,  13  Pac.  127;  Wulf  v.  Manuel,  9  Mont.  276,  279,  286,  23  Pac.  723 
Mattingly  v.  Lewisohn,  13  Mont.  508,  35  Pac.  111. 

«i  POWER  v.  SLA,  24  Mont.  243,  251,  252,  61  Pac.  468,  471.     Where  a  for 


§  94)  KINDS   OF   RELOCATION.  309 

The  foregoing  language  from  Power  v.  Sla  was  used  in  a  case 
where  the  defendants  were  asking  in  a  "cross-complaint"  to  have 
plaintiffs  declared  trustees  of  a  patented  claim  because,  pending  the 
patent  proceedings,  the  defendants  relocated  it.  The  nature  of  the 
relief  asked  called  for  specific  allegations;  but  the  language  of  the 
court  would  seem  to  suggest  the  right  rule  to  be  applied  in  all  cases. 
An  adverse  suit  ought  to  be  made  to  comply  with  the  same  rules  of 
pleading  as  other  suits;  but  whether  it  has  to  do  so,  or  not,  is  not 
clear.42  In  a  recent  adverse  suit  a  plaintiff,  who  was  relying  on  an 
attempted  relocation,  was  nonsuited  because  he  did  not  show  that  the 
claim  was  on  unoccupied  and  vacant  public  domain  at  the  time  sub- 
ject to'  location.43 

While  the  burden  of  proof  is  on  the  one  asserting  a  forfeiture,  he 
makes  out  a  prima  facie  case  by  showing  that  no  work  was  done 
within  the  limits  of  the  claim,  or  that  $100  worth  of  work  was  not 
done  there,  during  the  year  preceding  relocation;  and  the  burden 
then  shifts  to  the  prior  locator  to  show  that  the  required  amount  of 
work  entitled  to  count  as  annual  labor  was  performed  outside  of  the 
claim.44 

THE   KINDS  OF  RELOCATION. 

"94.    Relocations  may  be  made  (1)  by  third  persons;    (2)  by  the  original 
locators. 

Now  we  are  ready  for  the  relocation  cases.  We  may  group  them 
under  two  heads,  namely,  relocations  by  third  persons  and  relocations 
by  the  original  locators.  In  each  case  there  can  be  a  relocation  only 
after  the  rights  based  upon  the  original  location  either  have  been 
extinguished  by  abandonment  or  have  become  forfeitable  by  a  new 
entry  and  a  new  location.45  "Mining  claims  are  not  open  to  relo- 
cation until  the  rights  of  a  former  locator  have  come  to  an'  end.  A 
relocator  seeks  to  avail  himself  of  mineral  in  the  public  lands  which 
another  has  discovered.  This  he  cannot  do  until  the  discoverer  has 


feiture  for  failure  to  make  annual  expenditure  is  claimed,  it  is  necessary  to 
negative  the  expenditure  of  $100  in  improvements,  as  well  as  to  negative  its 
expenditure  in  work.  Id. 

42  See  note  39,  supra. 

43-  McWilliams  v.  WInslow,  34  Colo.  341,  82  Pac.  538.  But  see  Farrell  v. 
Lockhart,  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed. . 

44  LITTLE  DORRIT  GOLD  MIN.  CO.  v.  ARAPAHOE  GOLD  MIN.  CO.,  30 
Colo.  431,  71  Pac.  389 ;    Sherlock  v.  Leighton,  9  Wyo.  297,  63  Pac.  580,  934. 

45  See  McCann  v.  McMillam,  129  Cal.  350,  62  Pac.  31;   Lockhart  v.  Rollins, 
2  Idaho  (Hash.)  540,  21  Pac.  413 ;   Lockhart  v.  Wills,  9  N.  M.  344,  54  Pac  336, 


310  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.  (Cll.  17 

in  law  abandoned  [or  forfeited]  his  claim  and  left  the  property  open 
for  another  to  take  up."  48 


RELOCATIONS  BY  THIRD  PERSONS. 

95.  Relocations,  made  as  such  by  third  persons,  seem  to  admit  the  va- 
lidity of  the  prior  location,  A  new  discovery  is  not  necessary, 
if  only  the  old  be  adopted  and  appropriated,  and  probably  the 
same  is  everywhere  true  of  location  markings;  but  the  regu- 
lar discovery  work  must  be  performed,  and  notices  posted  and 
recorded,  as  in  the  case  of  original  locations.  In  jurisdictions 
having  relocation  statutes  those  must  be  followed  in  all  de- 
tails. 

The  first  thing  to  notice  with  reference  to  a  relocation  by  a  third 
person  is  that  a  relocation,  made  distinctly  as  such,  admits  the  validi- 
ty of  the  prior  location.47  Where  the  location  notice  states  that 
the  claim  is  a  relocation  of  a  former  claim,  it  impliedly  admits  that 
the  original  location  was  valid,48  and,  of  course,  puts  upon  the  re- 
locator  the  burden  of  proving  the  acts  of  forfeiture  of  the  original 
location.49  "A  relocator  of  a  mining  claim  stands  in  a  different  atti- 
tude from  that  of  an  original  locator.  The  original  locator  of  min- 
ing ground  is  a  discoverer  of  the  mineral  therein  contained.  A  re- 
locator  is  not  a  discoverer  of  the  mineral,  but  an  appropriator  thereof, 
and  cannot  hold  the  ground,  except  upon  making  proof  that  the 
original  locator  had  abandoned  or  forfeited  his  right  by  failure  to 
comply  with  the  mining  laws.  All  the  authorities  agree  that  a  re- 
location impliedly  admits  that  there  has  been  a  valid  prior  location 
because  there  can  be  no  relocation  unless  there  has  been  a  prior  valid 
location,  or  something  equivalent  thereto.50  There  can  be  no  relo- 
cation until  there  has  been  an  abandonment  or  forfeiture  of  the  ground 
by  the  first  locator.  In  this  class  of  cases  the  burden  of  proving 

46  Belk  v.  Meagher,  104  U.  S.  279,  284,  26  L.  Ed.  735. 

47  Compare  Yosemite  Gold  Min.  &  Mill.  Co.  v.  Emerson,  208  U.  S.  25,  28 
Snp.  Ct.  196,  52  L.  Ed.  374. 

48  Wills  v.  Blain,  4  N.  M.  (Johns.)  378,  20  Pac.  798;    Jackson  v.  Prior  Hill 
Min.  Co.  (S.  D.)  104  N.  W.  207;    Providence  Gold  Min.  Co.  v.  Burke,  6  Ariz. 
323,  57  Pac.  641.    See  Yarwood  v.  Johnson,  29  Wash.  643,  70  Pac.  123  ;   Slothow- 
er  v.  Hunter,  15  Wyo.  189,  88  Pac.  36. 

49  PROVIDENCE  GOLD  MIN.  CO.  v.  BURKE,  6  Ariz.  323,  57  Pac.  641. 

BO  On  this  view  the  word  "relocation"  was  erroneously  used  in  Lauman  v. 
Hoofer,  37  Wash.  382,  79  Pac.  953,  where  there  was  an  adjudication  that  no 
valid  location  had  been  made,  and  yet  the  new  location  was  called  a  "reloca- 
tion." 


§  95)  RELOCATIONS   BY   THIRD   PERSONS.  311 

a  forfeiture  rests  upon  the  party  claiming  it,  whether  it  be  by  the 
plaintiff  or  defendant."  51 

While  the  cases  so  far  decided  have  not  allowed  one  who  called 
his  claim  a  relocation  to  deny  the  validity  of  the  prior  claim,  it  is  not 
believed  that  he  would  be  estopped  thereby  to  show  that  the  previous- 
location  was  absolutely  void  for  want  of  a  discovery  or  of  one  of  the 
necessary  acts  of  location.  Indeed,  it  is  hard  to  see  on  principle 
why  calling  the  relocation  by  that  name  should  ever  imply  more  than 
that  an  attempted  location  preceded  it.  Unless  the  local  statute  com- 
pels the  relocation  notice  and  certificate,  or  either,  to  state  that  it  is 
a  relocation,  it  would  be  better  not  to  state  it.  In  Arizona,  and  per- 
haps in  Montana  and  Nevada,  the  fact  that  the  relocation  was  such 
was  once  required  to  be  stated,  or  the  relocation  was  void;  but  in 
Arizona  and  Montana,  at  least,  this  requirement  has  been  repealed 
by  the  legislation  of  1907. 

Where  third  persons  relocate,  it  is  not  necessary  to  have  a  new 
discovery,  so  long  as  the  relocator  has  actual  knowledge  of  the  ex- 
istence of  the  mineral  and  adopts  the  discovery,52  provided,  of  course, 
the  discovery  or  discovery  shaft  has  not  been  patented  to  a  junior 
locator,  or  otherwise  lost,  without  a  new  discovery  elsewhere  on  the 
claim  being  made.53 

Relocations  as  Affected  by  Lavagnino  v.  Uhlig  and  Parr  ell  v.  Lock- 
hart. 

Where  a  relocation  is  made  without  a  discovery,  a  subsequent  dis- 
covery will  doubtless  validate  the  relocation  as  effectually  as  a  subse- 
quent discovery  validates  an  original  location.  Moreover,  where  the 
lines  of  a  junior  location  are  thrown  over  a  senior  location,  and  the 
discovery  for  the  junior  is  on  the  conflict  area,  a  logical  extension 
of  the  doctrine  of  Farrell  v.  LockhartJ  would  seem  to  show  that 
an  abandonment  of  the  senior  location,  and  a  logical  extension  of  the 
doctrine  of  Lavagnino  v.  Uhlig54  would  seem  to  show  equally  that 

si  ZERRES  v.  VANINA  (C.  C.)  134  Fed.  610,  614. 

62  HAYES  v.  LAVAGNINO,  17  Utah,  185,  53  Pac.  1029,  Atmau-oiife  v.  ix>w- 
er,  6  Colo.  393,  395;  Nevada  Sierra  Oil  Co.  v.  Home  Oil  Co.  (C.  C.)  98  Fed. 
673.  That  the  relocator  has  a  reasonable  time  to  verify  discovery  and  com- 
plete location,  see  Murley  v.  Ennis,  2  Colo.  300. 

ss  Gwillim  v.  Donnellan,  115  U.  S.  45,  5  Sup.  Ct  1110,  29  L.  Ed.  348;  Miller 
v.  Girard,  3  Colo.  App.  278,  33  Pac.  69;  SILVER  CITY  GOLD  &  SILVER 
MIN.  CO.  v.  LOWRY,  19  Utah,  334,  57  Pac.  11. 

JFARRELL  v.  LOCKIIART,  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed.  . 

»*  LAVAGNINO  v.  UHLIG,  198  U.  S.  443,  25  Sup.  Ct.  716,  49  L.  Ed.  1119. 

But  see  Farrell  v.  Lockhart,  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed. ,  which 

throws  doubt  on  this  proposition.  And  see  Moorhead  v.  Erie  Min.  &  Mill.  Co. 
(Colo.)  96  Pac.  253. 


312  ABANDONMENT,  FORFEITURE,  AND   RELOCATION,  (Ch.  17 

a  forfeiture  of  the  senior  location,  will  perfect  the  junior  claim  as 
against  a  third  person  who  later  attempts  to  relocate.  The  reason 
is  that  on  principle  the  conflict  area  inures  in  each  case  to  the  junior 
claim,  and  thus  the  junior  claim  acquires  a  valid  discovery.  The  only 
troublesome  question  is  whether  under  the  cases  the  conflict  area 
inures  to  the  junior  claim  without  action  by  the  junior  claimant,  or 
whether  it  will  so  inure  only  if  he  amends  his  location  certificate. 

While  the  decision  of  Lavagnino  v.  Uhlig  apparently  made  the  sub- 
ject of  amendment  of  location  certificates  unimportant,  except  where 
the  original  certificates  failed  to  comply  with  the  statute,  or  it  was 
sought  to  cut  off  the  right  of  the  senior  to  resume  work,  or  the  amend- 
ment was  needed  because  the  claim's  boundaries  as  stated  therein 
had  been  changed  by  swinging  the  claim65  or  making  the  end  lines 
parallel,56  it  still  left  it  possible,  though  certainly  not  probable,  that 
in  extreme  cases  a  failure  to  amend  would  be  construed  as  an  aban- 
donment, or  at  least  evidence  of  abandonment,  of  the  conflict  area 
by  the  junior  locator.  Apart  from  the  language  of  Lavagnino  v. 
Uhlig  itself,  what  makes  an  abandonment  by  the  junior  locator  im- 
probable is  a  decision,  such  as  that  of  the  Colorado  case,  where, 
after  a  junior  locator  had  patented  the  senior  discovery  shaft,  the 
senior  claim  was  held  to  be  validated  by  the  sinking  of  a  new  dis- 
covery shaft  on  unaffected  senior  ground,  although  no  amended  lo- 
cation notice  was  posted  at  the  new  discovery  and  no  amended  lo- 
cation certificate  was  recorded.57  The  junior  locators  in  the  conflict 
area  ought  similarly  to  be  protected  as  against  relocators  coming  in 
after  abandonment  by  the  senior  locator  without  the  need  of  an  amend- 
ment of  the  record.  We  have  already  seen,  however,  that  the  fail- 
ure of  the  junior  locator  to  file  an  amended  location  certificate  or  to 
make  an  actual  relocation  probably  enables  the  senior  locator  to  re- 
sume work  at  any  time.58  And  since  the  case  of  Farrell  v.  Lock- 
hart  59  it  looks  as  if  the  failure  of  the  junior  locator  to  file  an  amend- 
ed location  certificate,  or  to  make  an  actual  relocation  after  aband- 
onment by  the  senior  locator,  may  yet  be  held  by  the  federal  Supreme 
Court  to  leave  the  junior  claimant's  ground  subject  to  relocation.60 

5  s  Duncan  v.  Fulton,  15  Colo.  App.  140,  61  Pac.  244. 

56  Tyler  Min.  Co.  v.  Last  Chance  Min.  Co.  (C.  C.)  71  Fed.  848. 

57  TREASURY  TUNNEL  MINING  &  REDUCTION  CO.  v.  BOSS,  32  Colo. 
27,  74  Pac.  888,  105  Am.  St.  Rep.  60;    McMillen  v.  Terrum  Min.  Co.,  32  Colo. 
38,  74  Pac.  461,  105  Am.  St.  Rep.  64. 

ss  See  previous  chapter.  As  to  the  right  of  the  senior  locator  to  resume  work 
on  the  conflict  area,  if  the  rest  of  the  claim  has  been  relocated  by  third  par- 
ties on  a  discovery  outside  the  conflict  area,  query? 

59  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed. . 

eo  See  Moorhead  v.  Erie  Min.  &  Mill.  Co.  (Colo.)  96  Pac.  253.     It  has  been 


g  95)  RELOCATIONS   BY   THIRD   PERSONS.  313 

Until,  however,  the  federal  Supreme  Court  shall  hold  that  abandon- 
ment by  the  senior  locator  of  the  ground  covering  the  junior's  dis- 
covery cannot  be  deemed  to  validate  the  junior  claim  either  by  the 
abandonment  being  given  retroactive  effect  or  by  the  junior  locator's 
past  acts  of  location,  continuously  relied  on  by  him,  being  given  full 
force  without  the  need  of  repetition,  the  matter  will  be  in  doubt. 

supposed  by  many  (see,  for  instance,  Morrison's  Mining  Rights  [13th  Ed.]  38, 
108)  that  LAVAGNINO  v.  UHLIG,  198  U.  S.  443,  25  Sup.  Ct.  716,  49  L.  Ed.  1119, 
is  inconsistent  with  BELK  v.  MEAGHER,  104  U.  S.  285,  26  L.  Ed.  735,  and 
BROWN  v.  GURNEY,  201  U.  S.  184,  26  Sup.  Ct.  509,  50  L.  Ed.  717 ;  and  in  FAR- 

RELL  v.  LOCKHART,  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed. ,  the  United 

States  Supreme  Court  itself  seemed  disturbed  at  the  apparent  conflict.  That  LA- 
VAGNINO v.  UHLIG  is  inconsistent  with  BELK  v.  MEAGHER  cannot  be 
doubted,  but  that  BELK  v.  MEAGHER  was  wrongly  decided  would  seem  to  be 
clear.  While  it  is  true,  as  is  pointed  out  in  BELK  v.  MEAGHER,  that  "a 
relocation  on  lands  actually  covered  at  the  time  by  another  valid  and  subsisting 
location  is  void,  and  this,  not  only  against  the  prior  locator,  but  all  the  world, 
because  the  law  allows  no  such  thing  to  be  done"  (BELK  v.  MEAGHER,  104 
U.  S.  279,  at  page  284,  26  L.  Ed.  735),  this  is  just  as  true  of  an  attempted  lo- 
cation on  unoccupied  land,  where  there  has  actually  been  no  discovery ;  and 
yet,  as  we  have  noticed  (chapter  X,  §  42,  supra),  the  latter  becomes  perfected 
on  discovery  without  a  reperformance  of  the  acts  of  location.  In  overruling  the 
misapplication  of  correct  principle  by  BELK  v.  MEAGHER,  the  case  of  LA- 
VAGNINO v.  UHLIG  did  much  for  sound  mining  law  doctrine.  That  BROWN 
v.  GURNET,  201  U.  S.  184,  26  Sup.  Ct.  509,  50  L.  Ed.  717,  is  inconsistent  with 
LAVAGNINO  v.  UHLIG  cannot  be  conceded,  for  BROWN  v.  GURNEY  was 
concerned  merely  with  the  right  rule  to  apply  to  the  attempted  relocation  of 
mining  claims  covered  by  applications  for  patent  pending  in  the  land  depart- 
ment (see  statement  of  the  case  in  §  95,  infra).  Such  mining  claims,  while  af- 
fected by  the  quasi  judicial  proceedings  in  the  land  department,  may  .well  be 
governed  by  a  special  rule.  It  is  to  be  regretted  that  in  FARRELL  v.  LOCK- 
HART,  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed.  ,  the  doctrine  of  LAVAG- 
NINO v.  UHLIG  was  not  vigorously  reaffirmed.  While  "not  doubting  the  cor- 
rectness of  the  decision  in  the  Lavagnino  case,"  the  Supreme  Court  in  the  Far- 
rell  Case  said  that  it  did  "not  pause  to  particularly  re-examine  the  reasoning 
expressed  in  LAVAGNINO  v.  UHLIG  as  an  original  proposition,"  and  then 
proceeded  to  qualify  LAVAGNINO  v.  UHLIG  for  supposed  reasons  of  expedi- 
ency. It  is  believed  that  expediency  does  not  call  for  a  rule  which  will  give 
priority  to  a  second  relocator,  who  enters  with  knowledge  of  the  bona  fide  at- 
tempts of  the  first  relocator,  and  who  relies  on  a  technicality  to  get  that  min- 
ing property,  which  tme  principle,  as  expounded  in  LAVAGNINO  v.  UHLIG, 
shows  should  be  held  to  belong  to  the  first  relocator.  It  is  to  be  hoped  that 
the  Supreme  Court  of  the  United  States  will  reaffirm  LAVAGNINO  v.  UHLIG, 
and  thereby  support  the  land  department  ruling  that  a  location  based  on  a  dis- 
covery within  an  existing  valid  location  is  only  voidable  if  attacked  in  time, 
and  is  far  from  being  absolutely  void.  Gowdy  v.  Kismet  Gold  Mining  Co.,  22 
Land  Dec.  Dep.  Int.  624;  American  Consol.  Mining  &  Milling  Co.  v.  De  Witt, 
26  Land  Dec.  Dep.  Int.  580;  MUTUAL  MINING  &  MILLING  CO.  v.  CUR- 
RENCY CO.,  27  Land  Dec.  Dep.  Int.  191 ;  Burnside  v.  O'Connor,  30  Land  Dec. 
Dep.  Tut.  67. 


314  ABANDONMENT,  FORFEITURE,  AND    RELOCATION.  (Cll.  11 

The  Acts  of  Relocation. 

While  a  new  discovery  is  not  requisite  to  a  relocation,  the  stat- 
utes make  it  necessary  for  the  relocator  to  do  the  regular  discover}' 
work  by  sinking  a  new  discovery  shaft,  or  by  sinking-  the  old  one  1C 
feet  deeper.61  Then,  too,  under  the  statutes  it  is  necessary  to  mark  the 
location  on  the  ground,  so  that  its  boundaries  may  readily  be  traced, 
and  to  comply  with  the  state  statutes  in  regard  to  staking  the  claim, 
A  relocator,  in  "jumping"  a  claim,  is  required  to  do  practically  all 
that  the  original  locator  did  except  make  a  new  discovery;  but,  un- 
der the  state  statutes,  and  by  virtue  of  decisions  in  California  62  and 
Utah,63  he  may  adopt  the  old  boundary  markings  of  the  first  locator 
so  far  as  they  still  exist,  and  still  comply  with  the  state  statutory  re- 
quirements.64 The  location  stake  should,  of  course,  be  replaced,  ii 
lost,  and  the  proper  notice  posted.  The  fact  of  the  matter  is  that 
while  the  statutes  specifically  relating  to  relocation  are  not  as  precise 
in  their  requirements  as  they  might  be,  the  relocator  must  locate  anc 
record  in  substantially  the  same  manner  as  the  original  locator  hac 
to  do,65  except  that  he  may  adopt  the  stakes  and  monuments  of  the 
original  location,66  and  may  sink  the  old  discovery  shaft  10  feet  deep- 
er, instead  of  sinking  a  new  one.67 

It  seems  to  be  assumed,  although  the  relocation  statutes  do  noi 
always  so  specify,  that  the  location  requirements  as  to  the  time  o' 
posting  notice,  the  time  of  staking  the  location,  the  size,  placing 
and  marking  of  stakes  and  monuments,  and  the  necessity  and  time  foi 
record,  apply  to  relocations.  That  this  assumption  requires  mucl" 
to  be  read  into  the  statute  is  apparent  from  an  inspection  of  the 
Colorado  statute,  which  reads:  "The  relocation  of  abandoned  lode 

/ 

61  A  statutory  provision  that  the  relocator  "may"  sink  the  old  shaft  ten  fee 
deeper  does  not  mean  that  he  "must"  do  so.    The  discovery  work  on  reloca 
tion  may  be  performed  elsewhere  on  the  claim.     Carlin  v.  Freeman,  19  Colo 
App.  334,  75  Pac.  26. 

62  CON  WAY  v.  HART,  129  Cal.  480,  62  Pac.  44. 

es  BROCKBANK  v.  ALBION  MIN.  CO.,  29  Utah,  367,  81  Pac.  863. 

64  See  Miller  v.  Taylor,  6  Colo.  41. 

65  Armstrong  v.  Lower,  6  Colo.  393.     Under  the  old  Montana  statute  a  de 
claratory  statement  was  held  invalid  where  it  did  not  show  the  depth  of  th( 
old  shaft  at  the  date  of  relocation  and  that  it  was  sunk  10  feet  deeper.    Wil 
son  v.  Freeman,  29  Mont.  470,  75  Pac.  84,  68  K  R.  A.  833. 

ee  Pelican  &  Dives  Min.  Co.  v.  Snodgrass,  9  Colo.  339,  12  Pac.  206. 

67  Armstrong  v.  Lower,  6  Colo.  393.  In  LITTLE  GUNNELL  CO.  v.  KIM 
BER,  1  Morr.  Min.  Rep.  (U.  S.)  536,  Fed.  Cas.  No.  8,402,  it  is  said  to  be  insnffi 
cient  relocation  discovery  work  to  run  a  tunnel  into  the  claim  from  an  old  shafi 
upon  an  adjoining  claim,  even  though  ordinarily  a  tunnel  will  answer  under  th< 
state  statute  for  discovery  work.  Compare  Butte  Consol.  Min.  Co.  v.  Barker 
35  Mont.  327,  89  Pac.  302,  90  Pac.  177. 


§  95)  RELOCATION   BY   THIRD   PERSONS.  315 

claims  shall  be  by  sinking  a  new  discovery  shaft  and  fixing  new  bound- 
aries in  the  same  manner  as  if  it  were  the  location  of  a  new  claim ; 
or  the  relocator  may  sink  the  original  discovery  shaft  ten  feet  deeper 
than  it  was  at  the  time  of  abandonment,  and  erect  new  or  adopt  the 
old  boundaries,  renewing  the  posts  if  removed  or  destroyed.  In  either 
case  a  new  location  stake  shall  be  erected.  In  any  case,  whether 
the  whole  or  part  of  an  abandoned  claim  is  taken,  the  location  cer- 
tificate may  state  that  the  whole  or  any  part  of  the  new  location  is  lo- 
cated as  abandoned  property."  68 

In  this  statute  the  words  "in  the  same  manner"  fix  the  kind  of 
boundary  stakes  sufficiently  by  reference  to  the  location  statute,  and 
perhaps  the  time  for  doing  the  staking  is  also  imported.  The  erec- 
tion of  a  new  location  stake,  however,  does  not  necessarily  show  what 
the  contents  of  a  location  notice  must  be.  Indeed,  as  the  Colorado  lo- 
cation statute  does  not  require  a  location  stake  as  such  to  be  erected, 
but  simply  requires  an  act  of  location  "by  posting  at  the  point  of  dis- 
covery on  the  surface  a  plain  sign  or  notice  containing  the  name 
of  the  lode,  the  name  of  the  locator,  and  the  date  of  discovery,"  69  a 
location  stake  is  in  fact  a  new  requirement  under  the  relocation  stat- 
ute, based  on  the  well-known  custom  followed  in  making  locations' 
So,  too,  the  fact  that  the  location  certificate  may  state  that  a  part  or 
all  of  the  new  location  is  located  as  abandoned  property  clearly  per- 
mits a  record  to  be  made ;  but  the  relocation  statute  does  not  specifical- 
ly require  one,  nor  fix  the  time  for  the  acts  to  be  done.  The  fact  of  the 
matter  is  that  time  in  the  relocation  statute  is  treated  by  the  courts 
all  the  way  through  as  governed  by  the  location  statute,  because  all 
matters  should  be  governed  by  that  statute,  except  where  explicitly 
otherwise  provided  for  in  the  relocation  statute.  The  relocator  of  an 
abandoned  mining  claim  has  the  same  length  of  time  to  perform  each 
of  the  acts  of  location  subsequent  to  discovery  as  the  original  locator.70 

The  legislature  proceeded  upon  the  theory,  which  the  courts,  in 
recognition  of  the  very  nature  of  relocation,  are  bound  to  follow, 
that  a  relocator,  in  making  his  relocation  on  land  which  under  the 
federal  statute  is  "open  to  relocation  in  the  same  manner  as  if  no 
location  of  the  same  had  ever  been  made,"  must  do  all  that  the  orig- 
inal locator  had  to  do,  except  in  so  far  as  the  Legislature  permits 
the  relocator  to  take  advantage  of  and  utilize  the  stakes  on  the  ground 
and  the  workings  already  started.  Because  of  the  foregoing  assump- 
tion, growing  out  of  the  very  nature  of  relocation,  it  is  necessary  to 

es  Mills'  Ann.  St.  Colo.  §  3162. 
69  Mills'  Ann.  St.  Colo.  §  3152. 
™  Pelican  &  Dives  Min.  Co.  v.  Snodgrass,  9  Colo.  339,  12  Pac.  206. 


316  ABANDONMENT,  FORFEITURE,  AND    RELOCATION.          (Ch.    17 

notice  particularly  those  relocation  statutes  which  make  requirements 
not  also  prescribed  for  original  locations. 

In  Arizona  until  recently  the  statute  provided  that  the  location 
notice  on  a  relocation  should  state  if  the  whole  or  any  part  of  the  new 
location  was  located  as  abandoned  property,  or  otherwise  it  should  be 
void.  The  courts  of  Arizona,  of  course,  recognized  the  right  of  the 
Legislature  to  make  that  requirement  fundamental; 71  but  the  Legis- 
lature itself  wisely  changed  it.72  Washington  seems  to  have  a  stat- 
ute similar  to  the  early  Arizona  statute.73  In  Colorado,  Nevada,  North 
Dakota,  South  Dakota,  Washington,  and  Wyoming  the  statute  reads 
that  the  location  certificate  or  declaratory  statement  "may"  state  that 
abandoned  property  is  included  in  the  relocation.  It  seems  clear  that 
in  these  statutes  such  "may"  does  not  mean  "shall,"  or  "must,"  and 
that  therefore  the  insertion  of  the  statement  that  abandoned  property 
is  included  is  merely  permissive,  and  not  mandatory.74  So,  too,  it 
seems  certain  that  here  "abandoned  property"  includes  forfeited  as 
well  as  technically  abandoned  property.75  In  Nevada,  if  the  relocator 
sees  fit  to  perform  discovery  shaft  work  by  sinking  the  old  discovery 
shaft  10  feet  deeper,  he  must  give  the  depth  and  dimensions  of  the 
original  discovery  shaft  at  the  date  of  relocation,  and  in  doing  so, 

71  CUNNINGHAM  v.  PIRRUNG  ,(Ariz.)  80  Pac.  329;   Matko  v.  Daley  (Ariz.) 
85  Pac.  721.     In  Cunningham  v.  Pirrung  the  Arizona  statute  was  held  not  to 
apply  where  the  previous  attempted  location  was  invalid,  and  the  relocation 
was  made  for  that  reason.    To  the  same  effect  is  Paragon  Mining  &  Develop- 
ment Co.  v.  Stevens  County  Exploration  Co.,  45  Wash.  59,  87  Pac.  1068.    In 
Kinney  v.  Lundy  (Ariz.)  89  Pac.  496,  it  was  held  that  the  word  "void"  in  the 
statute  meant  "voidable,"  and  the  relocation  might  be  cured  by  amendment. 

72  Laws  Ariz.  1907,  p.  27. 

73  Paragon  Mining  &  Development  Co.  v.  Stevens  County  Exploration  Co.,  45 
Wash.  59,  87  Pac.  1068.    In  that  case  it  was  held  that  locators  who  at  an  ear- 
ly morning  hour  posted  a  notice  of  location  and  set  two  corner  stakes,  and  im- 
mediately left  the  claim,  and  never  did  any  thing  more,  never  proceeded  far 
enough  to  acquire  any  rights  to  be  lost  by  abandonment  or  otherwise,  and  hence 
a  subsequent  locator  need  not  state  in  his  location  certificate  that  he  was  re- 
locating an  abandoned  claim. 

74  Query,  however,  in  Nevada,  where  the  relocator  knows  that  he  is  locat- 
ing abandoned  or  forfeited  ground?    The  clause  in  the  relocation  act  in  that 
state  to  the  effect  that,  "if  it  is  not  known  to  the  locator  that  his  location  is 
on  an  abandoned  claim,  then  the  provisions  of  this  section  do  not  apply,"  can- 
not refer  to  the  case  of  sinking  an  old  discovery  shaft  10  feet  deeper;    for, 
where  there  is  an  old  discovery  shaft,  the  relocator  must  know  that  the  ground 
is  abandoned  or  forfeited.     Unless  the  word  "may,"  in  the  clause  authorizing 
the  statement  in  the  recorded  paper  that  the  property,  or  part  of  it,  is  located 
as  abandoned  property,  does  really  mean  "must,"  where  the  relocator  knows 
that  he  is  locating  abandoned  or  forfeited  property,  the  clause  about  the  stat- 
ute not  applying  if  he  does  not  know  would  seem  to  be  meaningless. 

75  See  note  1,  supra. 


§  95a)  RESUMPTIONS   OF   WORK.  317 

of  course,  necessarily  implies  that  the  property  is  an  abandoned  or 
forfeited  mining  claim. 

Some  of  the  state  relocation  statutes  specifically  allow  the  relocator 
to  do  his  discovery  work  by  an  adit,  open  cut,  or  tunnel,  and  by  driv- 
ing the  original  adit,  open  cut,  or  tunnel  10  feet  further  along  the 
course  of  the  vein.  Instances  of  these  are  the  Idaho,  New  Mexico, 
North  Dakota,  and  South  Dakota  statutes.  In  Wyoming,  on  the  other 
hand,  the  relocation  must  be  perfected  by  sinking  a  new  discovery 
shaft  and  by  fixing  new  boundaries  in  the  same  manner  as  is  provid- 
ed for  the  location  of  a  new  claim.  By  the  Oregon  statute  "abandoned 
claims  shall  be  deemed  unappropriated  mineral  lands,  and  titles  there- 
to shall  be  obtained  as  in  this  act  specified  without  reference  to  any 
work  previously  done  thereon."  78  In  Oregon,  in  other  words,  there 
is  no  distinction  between  the  manner  of  making  an  original  location 
and  that  of  making  a  relocation.  And  everywhere  it  may  be  said  that 
the  relocator  runs  all  the  risks  that  the  original  locator  does  in  fail- 
ing to  comply  on  time  with  essential  requirements,  such  as  that  about 
marking  the  location  on  the  ground,  so  that  its  boundaries  can  readily 
be  traced,77  etc.  In  one  case  a  person  who  attempted  to  relocate  fail- 
ed to  sink  his  discovery  shaft  deep  enough,  and  was  cut  out  by  a 
resumption  of  work  on  the  part  of  the  previous  locator.78 

Unless  the  trespass  is  waived,  or  an  estoppel  is  shown,  a  relocation 
based  upon  a  trespass  is  invalid  79  A  relocation  must  be  tested  by  the 
rules  which  govern  an  original  location,  and  when  it  is  valid  con- 
fers no  greater  rights  than  an  original  location  confers.80 


SAME— RESUMPTIONS   OF   WORK. 

95a.  Relocations  by  third  persons  are  often  complicated  by  attempted 
resumptions  of  work  by  the  delinquent  owners.  In  some 
jurisdictions  resumption  may  take  place  at  any  time  before 
the  last  act  of  relocation  is  completed,  and  everywhere  a  re- 
sumption begun  in  good  faith  the  last  day  of  the  year,  when  it 
is  too  late  to  complete  the  $1OO  required  expenditure  for  that 

7«  Sp.  Laws  Or.  1898,  p.  17,  §  4. 

77  BROCKBANK  v.  ALBION  MIN.  CO.,  29  Utah,  367,  81  Pac.  863. 

i*  Field  v.  Tanner,  32  Colo.  278,  75  Pac.  916. 

79  Moffat  v.  Blue  River  Gold  Excavating  Co.,  33  Colo.  142,  80  Pac.  139.  That 
there  can  be  no  relocation  where  the  claim  is  in  the  actual  possession  of  per- 
sons who  have  done  the  requisite  amount  of  assessment  work  under  an  insuffi- 
cient location  is  asserted  in  Ware  v.  White,  81  Ark.  220,  108  S.  W.  831.  But 
query?  Compare  Goldberg  v.  Bruschi,  146  Cal.  708,  81  Pac.  23. 

*°Malone  v.  Jackson,  137  Fed.  878,  70  O.  C.  A.  216;  Van  Valkenburg  v. 
Huff,  1  N^v.  142. 


318  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.  (Ch.  17 

year,  and  continued  in  regular  working  hours  the  first  and 
subsequent  days  of  the  new  year,  seems  to  give  the  resnmer  a 
title  superior  to  that  of  one  who  attempts  to  relocate  in  the 
early  morning  hours  of  the  first  day  of  the  new  year  and  prior 
to  any  work  by  the  resumer  that  morning.  But  query? 

The  troublesome  questions  in  regard  to  relocation  are  usually  those 
involving  a  claim  of  resumption  of  work  by  the  original  locators. 
We  have  already  discussed  the  cases  which  hold  that  resumption  may 
take  place  at  any  time  prior  to  the  completion  of  all  the  requisite  acts 
of  relocation;  the  resumer's  work,  if  prosecuted  to  the  statutory 
amount  with  reasonable  diligence,  being  all  credited  to  him  as  of  the 
time  when  he  did  the  first  work,  but  the  relocator's  steps  being  credit- 
ed to  him  only  as  of  the  time  when  he  does  the  last  requisite  location 
act.81  Such  a  doctrine,  of  course,  makes  relocation  practically  impos- 
sible, except  in  cases  of  genuine  abandonment,  and  runs  counter  to  the 
prevailing  idea  of  the  federal  statutes  that  a  locator  must  periodically 
manifest  the  good  faith  of  his  holding  by  doing  annual  labor,  or 
else  give  way  to  some  other  locator,  who  will  live  up  to  the  require- 
ments of  the  law.82 

But  short  of  such  a  case  is  the  troublesome  one  where  a  locator 
neglects  doing  the  annual  labor  until  the  end  of  the  year  in  which 
it  must  be  performed,  and  then,  when  it  is  too  late  to  do  the  work 
for  that  year,  starts  to  do  it,  and  an  attempted  relocation  is  made 
January  1st.  In  the  case  of  Fee  v.  Durham,83  for  instance,  locators 
commenced  their  annual  assessment  work  on  December  26th,  and  their 
employes  worked  until  the  night  of  December  30th,  which  was  Satur- 
day, when  they  quit  until  Monday  morning,  January  1st.  They  left 
their  tools  on  the  claim,  intending  to  return  to  work  January  1st, 
and  did  return  to  work  at  the  usual  hour  on  January  1st.  Sunday 
night,  between  12  and  1  o'clock,  the  plaintiffs  went  upon  the  claim 
and  relocated  it.  (This  seems  to  have  been  in  Arkansas,  where  dis- 
covery work  is  not  an  essential  act  of  location  or  of  relocation). 
The  original  locators  continued  their  work  on  Monday  morning,  and 

si  McKay  v.  McDougall,  25  Mont.  258,  64  Pac.  669,  87  Am.  St.  Rep.  395 ; 
Lacey  v.  Woodward,  5  N.  M.  583,  25  Pac.  785 ;  Pharis  v.  Muldoon,  75  Cal.  284, 
17  Pac.  70.  See,  also,  Field  v.  Tanner,  32  Colo.  278,  75  Pac.  916 ;  Worthen  v. 
Sidway,  72  Ark.  215,  79  S.  W.  777.  The  Montana  rule  has  been  changed  by 
statute,  making  the  relocation  date  from  the  posting  of  notice  of  location,  and 
making  resumption  thereafter  ineffective  against  the  relocation.  Laws  Mont. 
1907,  p.  21. 

82  Even  in  California  a  relocation  may  take  place,  despite  the  fact  that  the 
original  locator  has  remained  in  possession.  Goldberg  v.  Bruschi,  146  Cal.  708, 
81  Pac.  23. 

*s  121  Fed.  468,  57  C.  C.  A.  584. 


3  95a)  RESUMPTIONS    OF   WORK.  319 

thereafter,  with  diligence,  until  the  annual  labor  for  the  new  year  was 
completed.  It  was  admitted  that  when  work  stopped  on  Saturday 
night  the  $100  worth  of  work  for  the  year  then  ending  had  not  been 
done.  The  United  States  Circuit  Court  of  Appeals  for  the  Eighth 
Circuit  held  that  the  resumption  of  work  in  December  renewed  the 
original  locator's  title  so  thoroughly  that  the  diligent  prosecution  of 
work  over  into  the  next  year  until  that  next  year's  work  was  done 
rendered  the  plaintiff's  relocation  void  ab  initio.  The  court  said: 
"The  defendant's  grantors  were  in  the  actual  possession  of  the  claim, 
actively  engaged  in  doing  the  annual  assessment  work  thereon,  when 
the  plaintiffs  entered  upon  the  claim  and  made  their  location.  The  en- 
try and  location,  under  these  circumstances,  was  a  trespass,  and  no 
rights  were  acquired  thereby.  Inchoate  rights  to  the  public  lands  can- 
not in  any  case  be  acquired  by  trespass  or  by  violence.  An  entry 
upon  the  prior  possession  of  another  is  a  trespass,  and  tends  to  pro- 
voke violence,  homicides,  and  other  crimes,  and  one  making  such 
entry  gains  nothing  by  it.  The  original  locators  must  be  held  to  have 
been  in  the  actual  possession  of  the  claim  at  the  time  the  plaintiffs 
made  their  location.  The  suspension  of  work  Saturday  night,  intend- 
ing to  resume  it  Monday  morning,  and  leaving  their  tools  on  the 
ground  for  that  purpose,  was  not,  in  any  sense,  an  abandonment 
of  their  possession  for  the  time  between  Saturday  night  and  Monday 
morning.  In  contemplation  of  the  law,  their  possession  was  as  com- 
plete and  actual  during  that  time  as  if  they  had  remained  at  work 
during  the  night  and  on  the  Lord's  day.  *  *  *  The  original  lo- 
cators in  this  case  had  not  abandoned  their  claim,  but  were  actually 
and  continuously  at  work  from  the  26th  of  December  until  an  early 
day  in  January,  when  they  had  done  $500  worth  of  work.  There  was 
no  suspension  of  the  work  during  this  time,  and  there  was  no  period 
during  which  the  plaintiffs  could  enter  and  make  a  valid  location.  The 
continuity  of  the  work  and  possession  was  not  broken  by  the  cessa- 
tion of  labor  at  night  and  on  the  Lord's  day.  It  must  be  conceded 
that,  if  the  original  locators  had  'resumed  work'  after  the  clock 
struck  12  on  Saturday  [Sunday]  night,  December  31st,  that  the 
plaintiff's  location  would  have  been  invalid.  We  think,  upon  the  facts 
in  this  case,  for  all  legal  purposes,  the  original  locators  must  be  held 
to  have  been  prosecuting  the  work  for  the  whole  of  that  night,  and 
that  the  plaintiffs  could  not  rightfully  enter  upon  the  claim  and  make 
a  valid  location  between  midnight  and  the  usual  hour  of  resuming 
work  on  Monday  morning."  8* 

s*  FEE  v.  DURHAM,  121  Fed.  468,  469-470,  57  C.  C.  A.  584,  585. 


320  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.          (Cll.  11 

The  foregoing  argument  is  not,  however,  as  strong  as  at  first 
sight  it  seems.  The  question,  to  begin  with,  is  not  one  of  abandon- 
ment, but  one  of  forfeiture.  Yet  the  court  treats  it  as  if  it  were  one  of 
technical  abandonment,  as  distinguished  from  forfeiture.  Moreover, 
it  is  not  a  question  of  trespass.  If  the  original  locators  had  not  re- 
sumed work,  constructively,  at  least,  before  plaintiffs  attempted  re- 
location, the  relocation  would  have  been  valid,  because  the  claim  woulc 
then  have  been  "open  to  relocation  in  the  same  manner  as  if  no  lo- 
cation of  the  same  had  ever  been  made,"  85  and  the  entry  by  plain- 
tiffs was  certainly  peaceable.86  Moreover,  in  view  of  the  custorr 
and  practice  of  miners  to  make  most  of  their  relocations  betweer 
12  and  1  o'clock  on  the  last  night  of  the  year,  such  a  relocation  can- 
not be  deemed  clandestine,87  even  if  the  fact  that  a  relocation  is  clan- 
destine should  be  deemed  to  vitiate  it.  It  was  the  original  locator's 
business  to  expect  and  know  of  the  relocation.  The  sole  question  ir 
the  case  was  whether,  when  the  original  locators  and  their  men  were 
asleep  in  their  cabins,  they  should  be  deemed  in  law  to.  be  at  work 
because  they  began  work  some  days  before,  and  were  irr^good  faitf 
intending  to  go  on  with  the  work  at  the  usual  hour  in  -the  ^morning 
Considering  that  the  original  locators  could  have  gone  up  at  12  o'clock 
that  night  and  resumed,  and  that,  as  the  dissenting  opinion  points 
out,88  a  refusal  to  recognize  the  relocation  as  valid  encourages  ficti- 
tious resumptions  of  work  just  to  defeat  relocations,  the  decision  ir 
Fee  v.  Durham  that  a  constructive  resumption*  in  the  new  year  car 
be  based  on  the  actual  resumption  in  the  preceding  year,  so  as  to  de- 
feat a  forfeiture,  would  seem  to  be  of  doubtful  soundness.  The  onl) 
thing  in  its  favor  is  the  general  doctrine  that  forfeitures  are  odious 
to  the  law.  The  decision  has  since  been  followed  by  another  case 
in  the  same  circuit,89  and  is  in  accord  with  previous  holdings  in  Ari- 
zona 90  and  in  the  land  department.91  As  it  furnishes  a  fair  working 
rule,  it  probably  will  be  followed. 

ss  Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426).  A  peaceable  entrj 
for  relocation  will  be  supported,  after  failure  to  do  annual  labor,  even  thougt 
the  claim  is  occupied  by  the  original  locator.  Du  Prat  v.  James,  65  Cal.  5.55 
4  Pac.  562 ;  Goldberg  v.  Bruschi,  146  Cal.  708,  81  Pac.  23. 

se  Dissenting  opinion  by  Sanborn,  J.,  in  FEE  v.  DURHAM,  121  Fed.  468 

472,  473,  57  C.  C.  A.  584.     See  DU  PRAT  v.  JAMES,  65  Cal.  555,  4  Pac.  562 
Brown  v.  Oregon  King  Mining  Co.  (C.  C.)  110  Fed.  728. 

ST  Dissenting  opinion  by  Sanborn,  J.,  in  FEE  v.  DURHAM,  121  Fed.  468 

473,  57  C.  C.  A.  584,  589. 

8.8  121  Fed.  476,  57  C.  C.  A.'  592. 

8»  WILLITT  v.  BAKER  (C.  C.)  133  Fed.  937. 

»o  JORDAN  v.  DUKE,  6  Ariz.  55,  53  Pac.  197.  In  this  case,  however,  th< 
relocators  found  some  of  the  owners  on  the  ground  when  the  attempt  to  re- 
locate was  made. 

»i  McNEIL  v.  PACE,  3  Land  Dec.  Dep.  Int.  267. 


§  95b)  PREMATURE   RELOCATIONS.  321 

SAME— PREMATURE  RELOCATIONS. 

95b.  A  relocation  is  premature  (1)  if  it  is  attempted  before  the  origi- 
nal and  perfected  location  is  subject  to  forfeiture,  and  (2)  if 
it  is  attempted  after  a  prior  prospector  has  made  discovery 
and  begun  the  acts  of  location,  but  before  the  time  allowed 
him  to  finish  the  acts  of  location  has  expired.  In  case  (2)  the 
relocation  is  premature,  even  though  the  original  prospector 
does  not  do  discovery  work,  or  record,  in  time. 

Premature   relocations  have  been   regarded   as   void,   but   Lavasnino 
v.  Uhlig  has  thrown  doubt  upon  that  doctrine. 

A  word  is  necessary  'about  premature  relocations.  They  consist 
of  two  kinds:  (1)  Those  where  a  perfected  location  is  not  yet  for- 
feitable;  and  (2)  those  where  a  prior  locator  has  not  yet  exhausted 
his  statutory  time  to  complete  his  uncompleted  location. 

Premature  Relocations  of  Perfected  Mining  Claims. 

It  is  perfectly  well  settled  that  a  relocation,  which  is  attempted  be- 
fore the  original  locator  or  his  grantee  is  in  default  under  his  exist- 
ing valid  location,  is  void.92  But  why  should  "void"  mean  there  that 
if  the  end  of  the  year  comes,  and  the  original  location  is  subject  to 
relocation,  the  previously  attempted  .relocation  must  be  disregarded? 
The  question  is  somewhat  like  that  discussed  when  we  considered 
whether  under  the  holding  in  Lavagnino  v.  Uhlig,93  a  location  that 
would  be  validated  by  the  abandonment  of  a  previous  and  then  exist- 
ing location  might  not  be  permitted  on  a  discovery  within  the  limits  of 
the  previous  and  existing  location.  The  answer  to  the  question  seems 
to  turn  wholly  on  whether  the  second  location,  if  it  applied  for  patent, 
could  be  attacked  by  a  protest  by  third  persons,  or  only  by  an  adverse 
claim  made  by  the  senior  locator.  Since  Lavagnino  .v.  Uhlig  the  use 
of  protest  in  other  ways  than  to  question  the  mineral  or  nonmineral 

»2BELK  v.  MEAGHER,  3  Mont  65;  Id.,  104  U.  S.  279,  26  L.  Ed.  735; 
Garthe  v.  Hart,  73  Cal.  541,  15  Pac.  93 ;  Moffat  v.  Blue  River  Gold  Excavating 
Co.,  33  Colo.  142,  80  Pac.  139.  See  Slavonian  Min.  Co.  v.  Perasich  (C.  C.)  7  Fed. 
331 ;  Aurora  Hill  Con.  Min.  Co.  v.  Eighty-Five  Mining  Co.  (C.  C.)  34  Fed.  515 ; 
Book  v.  Justice  Min.  Co.  (C.  C.)  58  Fed.  106;  Lockhart  v.  Rollins,  2  Idaho, 
(Hasb.)  540,  21  Pac.  413 ;  Renshaw  v.  Switzer,  6  Mont.  464,  13  Pac.  127.  That 
a  forfeited  or  abandoned  claim  is  still  staked  off,  of  course,  will  not  prevent 
a  relocation.  GOLDEN  FLEECE  G"OLD  £  SILVER  MIN.  CO.  v.  CABLE  CON- 
SOL.  GOLD  &  SILVER  MIN.  CO.,  12  Nev.  312.  A  relocator  was  refused  a  de- 
cree quieting  title  against  a  purchaser  at  an  execution  sale  which  took  place 
prior  to  relocation,  where  work  had  actually  been  done  on  some  of  the  claims, 
and  the  attempted  relocation  of  all  was  to  hinder,  delay,  and  defeat  the  judg- 
ment and  execution  sale.  Wailes  v.  Da  vies  (C.  C.)  158  Fed.  667. 

»s  Lavagnino  v.  Uhlig,  198  U.  S.  443,  25  Sup.  Ct  716,  49  L.  Ed.  1119. 
COST.  MIN.  L.— 21 


322  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.  (Ch.  1 

character  of  the  land,  the  citizenship  of  the  applicant,  the  posting  an< 
publication  of  the  notices  of  application  for  patent,  and  matters  o 
that  kind,  may  well  be  doubted. 

Messrs.  Morrison  and  De  Soto  were  inclined  in  the  twelfth  edi 
tion  of  their  book  to  support  the  premature  relocation  on  grounds  o 
laches  or  estoppel,  for  they  said  of  the  decision  in  Belk  v.  Meagher  9 
that  a  relocation  begun  before  the  year  expires  is  void:  "The  cas 
cited  so  decides ;  but  it  would  certainly  seem  that,  if  the  party  whos 
claim  was  taken  did  not  either  resume  work  or  take  steps  to  recove 
by  law  until  after  the  expiration  of  the  ensuing  annual  period,  hi 
laches  would  operate  to  validate  such  a  relocation,  although  begu 
before  the  proper  time."  95  The  laches  theory  has  received  a  sever 
blow  in  a  recent  case,96  and  it  is  believed  that  Lavagnino  v.  Uhlig  9 
furnishes  a  simpler  way  out  than  that  of  claiming  that  laches  vali 
dates  an  absolutely  void  relocation.  Under  a  logical  extension  o 
Lavagnino  v.  Uhlig  the  premature  location  is  ineffective  only  whil 
the  original  location  continues  in  unabated  vigor;  but,  when  tha 
location  is  abandoned  or  becomes  forf eitable,  the  relocation  spring 
into  life,  subject  to  the  same  right  of  the  original  owner  to  resum 
work  and  oust  the  relocation  that  exists  in  a  senior  locator  to  resum 
work  and  oust  a  junior  locator  from  the  area  in  conflict  between  th 
senior  and  junior  claims,  and  subject,  of  course,  to  relocation  b 
others  if  the  annual  labor  has  not  been  done  on  the  relocation.*  ] 
is  upon  the  right  to  resume,  therefore,  that  laches  and  estoppel  hav 
a  bearing.  The  same  rule,  however,  should  apply  to  the  relocate 
that  applies  between  the  junior  and  the  senior  locators  of  conflictin 
mining  claims. 

It  is  frankly  admitted  that  the  foregoing  doctrines  are  novel,  an 
are  opposed  to  some  earlier  cases,  as  well  as  to  the  late  case  of  Malon 
v.  Jackson,  where  the  continued  failure  of  the  original  locators  t 
do  the  work  was  held  not  to  validate  the  relocation; 98  but  the  doc 

»4  3  Mont.  65,  1  Morr.  Min.  Rep.  522. 

95  Morrison's  Mining  Rights  (12th  Ed.)  98. 

96  Malone  v.  Jackson,  137  Fed.  878,  70  C.  C.  A.  216.    There  a  claim  was  L 
cated  for  one  Baker  December  6,  1898.     The  annual  labor  was  not  done,  bi 
the  claim  was  not  subject  to  relocation  on  that  account  until  after  Decembt 
31,  1899.    July  10,  1899,  Jackson  attempted  to  relocate,  and  was  in  the  actuj 
possession  of  the  claim  in  1900,  1901,  and  1902.    Yet  January  1,  1902,  Malor 
relocated,  and  the  court  upheld  Malone's  relocation  as  against  Jackson's. 

97  Lavagnino  v.  Uhlig,  198  U.  S.  443,  25  Sup.  Ct.  716,  49  L.  Ed.  1119. 

*  The  locator  of  the  void  junior  claim  may  of  course  treat  it  as  absolute! 
void  and  make  a  new  location  on  a  discovery  in  unappropriated  ground.  Wa 
son  v.  Mayberry,  15  Utah,  265,  49  Pac.  479,  482. 

98  See  Slavonian  Mining  Co.  v.  Perasich  (C.  C.)  7  Fed.  331;    MALONE 


§  95b)  PREMATURE    RELOCATIONS.  323 

trine  of  Lavagnino  v.  Uhlig  is  itself  novel  and  inevitably  involves 
novel  consequences.  A  late  Montana  case  recognizes  this  fact." 
While  novel,  the  decision  in  Lavagnino  v.  Uhlig  and  its  logical  con- 
sequences seem  sensible  enough.  The  only  difficulty  about  insisting 
upon  those  consequences  is  that  in  Farrell  v.  Lockhart  10°  the  federal 
Supreme  Court  has  so  modified  Lavagnino  v.  Uhlig  as  to  leave  it 
doubtful  how  much  of  that  decision  remains.101 

Not  only  may  a  relocation  be  premature  because  it  comes  before  the 
end  of  the  year  in  which  the  annual  labor  may  be  done,  but  it  may  also 
be  premature  because,  though  the  locator  did  not  complete  the  required 
work  Curing  the  year  and  the  relocation  was  attempted  promptly  at  2 
a.  m.  on  the  following  January  1st,  the  locator  has  resumed  work  De- 
cember 31st,  and  continued  his  work  at  the  .regular  hour  on  January 
1st.  In  such  case  it  has  been  held  that  the  relocation  is  invalid,  al- 
though the  one  who  has  resumed  work  abandons  the  claim  five  or  six 
days  later.102  It  is  believed  that,  since  the  case  of  Lavagnino  v. 
Uhlig,  the  case  just  cited  cannot  be  supported.  It  is  always  to  be 
borne  in  mind,  however,  that  the  state  of  the  authorities  will  not  jus- 
tify any  relocator  who  has  made  a  premature  relocation  in  failing  to 
renew  his  relocation  after  the  original  location  either  is  abandoned  or 
becomes  forfeitable.  Such  renewal  of  relocation  should  take  place, 
not  only  to  cut  off  all  right  of  the  original  locator  to  resume  work 
and  defeat  the  premature  relocation,  but  also  to  save  all  possibility  of 
the  relocation  being  held  invalid  as  to  third  persons  who  also  come  in 
to  relocate.  Out  of  excessive  caution  the  renewal  of  relocation  should 
be  by  a  complete  statutory  relocation,  though  on  principle  a  relocation 
by  amendment  should  suffice.  In  view  of  the  decision  in  Farrell  v. 
Lockhart,103  which  is  believed  to  be  a  backward  step,  a  prudent  miner 
should  take  no  chances. 

Premature  Relocation  of  Unperfected  Mining  Claiwis. 

Another  kind  of  premature  relocation  is  where  one  is  attempted 
during  the  performance  of  the  acts  of  location  other  than  record, 
and  before  the  time  for  discovery  work  or  for  record  has  expired. 
Such  a  location  remains  ineffective  as  against  the  original  locator, 

JACKSON,  137  Fed.  878,  70  C.  C.  A.  216.  The  latter  case  was  decided  21  days 
before  LAVAGNINO  v.  UHLIG,  198  U.  S.  443,  25  Sup.  Ct  716,  49  L.  Ed.  1119. 
A  case  since  is  SIERRA  BLANCA  MINING  &  REDUCTION  CO.  v.  WIN- 
CHELL.  35  Colo.  13,  83  Pac.  628. 

»9  HELENA  GOLD  &  IRON  CO.  v.  BAGGALEY,  34  Mont  464,  87  Pac.  455. 

100  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed. . 

101  See  note  60,  supra. 

102  Jordan  v.  Duke,  6  Ariz.  55,  53  Pac.  197. 

103  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed. . 


324  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.  (Ch.  17 

although  the  discovery  work  is  not  done,104  and  although  the  record 
does  not  come  in  the  time  fixed  by  the  statute,105  and  seemingly  al- 
though the  failure  to  record  works  a  forfeiture  in  favor  of  a  third 
person  relocating  later.106  The  facts  that  the  original  locator  is  in 
possession  at  the  time  of  the  attempted  relocation,  and  continues  so, 
and  that  the  relocation  is  premature,  combine  to  create  a  situation 
which  keeps  the  relocation  in  the  state  of  suspended  animation  in 
which  it  started  until  it  is  ended  by  the  original  locator's  recording, 
or  by  the  relocatof  renewing  his  relocation  and  thus  ending  the  orig- 
inal location.107  This  suspended  animation  of  the  relocation  does  not 
constitute  an  intervening  vested  right,  which  will  prevent  the  orig- 
inal locator  from  correcting  a  defective  location  certificate  by  an  ad- 
ditional one.  As  the  attempted  relocation  does  not  stand  in  the 'way 
of  record  by  the  original  locator,  it  does  not  stand  in  the  way  of  an 
amendment  of  record.108  It  has  been  supposed  that  such  a  premature 
relocation  does  not  stand  in  the  way  of  a  relocation  by  others;  but 
since  the  case  of  L/avagnino  v.  Uhlig  that  hardly  seems  sound.  It  is 
believed  that  the  premature  relocation  if  diligently  looked  after  by 
the  relocatorf  should  have  priority  over  any  other  relocation,  and  that 
ultimately  the  courts  will  so  decide.109 

10*  Sierra  Blanca  Mining  &  Reduction  Co.  v.  Winchell,  35  Colo.  13,  83  Pac. 
628.  That  merely  posting  a  notice  of  location  and  setting  two  stakes,  if  fol- 
lowed by  immediate  abandonment,  may  not  initiate  a  location,  see  Paragon 
Mining  &  Development  Co.  v.  Stevens  County  Exploration  Co.,  45  Wash.  59, 
87  Pac.  1068. 

io5  BRAMLETT  v.  FLICK,  23  Mont.  95,  57  Pac.  869;  Last  Chance  Min.  Co. 
v.  Bunker  Hill  &  S.  Mining  &  Concentrating  Co.,  131  Fed.  579,  66  C.  O.  A.  299. 
See  Craig  v.  Thompson,  10  Colo.  517,  16  Pac.  24 ;  Omar  v.  Soper,  11  Colo.  380, 
18  Pac.  443,  7  Am.  St.  Rep.  246 ;  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037. 

loe  LOCKHART  v.  JOHNSON,  181  U.  S.  516,  21  Sup.  Ct.  665,  45  L.  Ed.  979. 
In  that  case  there  was  a  failure  to  sink  a  discovery  shaft,  as  well  as  a  failure 
to  record. 

107  Where  the  original  location  is  abandoned  before  being  completed,  such 
abandonment,  as  distinguished  from  forfeiture,  seems  to  keep  the  relocation 
from  being  premature.    KINNEY  v.  FLEMING,  6  Ariz.  263,  56  Pac.  723.     If 
not  abandoned,  and  the  time  to  record  has  not  expired  when  suit  is  brought, 
the  claim  may  be  shown  by  acts  of  location  without  record.    Id. 

108  CRAIG  v.  THOMPSON,  10  Colo.  517,  16  Pac.  24. 

t  Adams  v.  Polglase,  32  Land  Dec.  Dep.  Int.  477,  33  Land  Dec.  Dep.  Int.  30. 

109  Helena  Gold  &  Iron  Co.  v.  Baggaley,  34  Mont  464,  87  Pac.  455.    But  see, 
contra,  Nash  v.  McNamara  (Nev.)  93  Pac.  405.    The  recent  case  of  FARRELL 

v.  LOCKHART,  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed. ,  of  course,  throws 

doubt  upon  the  proposition;    but  LAVAGNINO  v.  UHLIG,  198  U.  S.  443,  25 
Sup.  Ct.  716,  49  L,  Ed.  1119,  seems  so  essentially  sound  on  principle  that  its 
rehabilitation  ought  reasonably  to  be  expected. 


§  95  b)  PREMATURE    RELOCATIONS.  325 

Another  claim  of  premature  relocation  has  been  raised  where  the 
previous  location  was  completed  at  the  time  of  relocation  except 
for  record,  but  at  the  time  of  attempted  relocation  the  statutory  time 
for  record  of  the  Original  location  had  elapsed.  In  Zerres  v.  Van- 
ina,110  indeed,  it  was  held  that  the  fact  that  the  original  locator, 
who  had  performed  the  necessary  assessment  work  for  the  preceding 
year,  never  had  recorded  his  location  certificate,  did  not  render  the 
claim  subject  to  relocation.  In  that  case  it  further  appeared  that  the 
original  locator  was  absent  from  the  ground  at  the  time  of  the  at- 
tempted relocation,  and  during  his  absence  some  of  the  boundary 
stakes  had  fallen  down.  The  real  proposition  seems  to  be  that  rec- 
ord, though  required,  by  the  Nevada  statute  under  consideration, 
to  be  within  90  days  after  the  date  of  posting  the  location  notice  on 
the  claim,  was  not  a  necessary  act  of  location,  but  was  merely  a  dis- 
cretionary act,  for  the  failure  to  perform  which  no  forfeiture  was 
imposed.  This  decision,  so  contrary  both  to  the  authorities  elsewhere 
and  to  the  necessities  of  the  mining  law,  has  been  followed  by  the 
state  courts  in  Nevada.111  It  certainly  seems  to  be  an  erroneous  de- 
cision. A  relocation  made  under  the  circumstances  of  that  case  cah^- 
not  be  premature,  despite  the  hardship  which  doubtless  influenced  the 
court  to  decide  as  it  did ;  for  record  notice  is  so  fundamental  a  re- 
quirement that  without  it  the  location  is  not  complete.112  While  the 
time  of  record  is  directory,  in  the  sense  that  it  need  only  precede  the 
vesting  of  intervening  rights,113  a  relocation  made  after  the  time 
the  original  locator  is  given  to  record,  and  before  he  does  record, 
is  clearly  valid,  if  made  peaceably  and  in  good  faith.  Unless  complet- 
ed within  the  time  prescribed,  an  attempted  location  must  give  way 
to  a  relocation,114  even  though  the  latter  is  made  with  full  notice  of 
the  prior  asserted  claim.115  Record  in  the  mining  law  is  not  merely 
notice.  It  is  a  prerequisite  to  the  genuine  existence  of  the  mining 
claim  which  it  describes.  That  is  why  actual  notice  is  not  equivalent 
to  record  notice.  The  relocation,  once  started,  comes  in  ahead  of 
the  original  location,  if  its  requisite  acts  of  relocation  are  performed  in 

no  (C.  C.)  134  Fed.  610;   Wailes  v.  Davies  (C.  C.)  158  Fed.  667. 

in  FORD  v.  CAMPBELL  (Nev.)  92  Pac.  206. 

112  But  see  the  Montana  statute  of  1907.    Laws  1907,  p.  18. 

nsMcGINNIS  v.  EGBERT,  8  Colo.  41,  5  Pac.  652;  Preston  v.  Hunter,  67 
Fed.  996,  15  C.  C.  A.  148. 

114  LOCKHART  v.  JOHNSON,  181  U.  S.  527,  21  Sup.  Ct  665,  45  L.  Ed.  979; 
Pelican  &  Dives  Min.  Co.  v.  Snodgrass,  9  Colo.  339,  12  Pac.  206;  Lockhart  v. 
Wills,  9  N.  M.  344,  54  Pac.  336;  Copper  Globe  Min.  Co.  v.  Allman,  23  Utah, 
410,  64  Pac.  1019 ;  Thallmann  v.  Thomas,  111  Fed.  277,  49  C.  C.  A.  317.  But 
see  Omar  v.  Soper,  11  Colo.  380,  18  Pac.  443,  7  Am.  St.  Rep.  246. 

us  BROWN  v.  OREGON  KING  MIN.  CO.  (C.  C.)  110  Fed.  728. 


326  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.  (Cll.  17 

regular  course,  even  though  the  record  of  the  original  location  is  per- 
fected meantime.116 

Too  Tardy  Relocations. 

Analogous  to  the  case  of  a  premature  relocation  is  that  of  a  re- 
location made  too  late.  It  is  well  settled  that,  after  entry  of  the  orig- 
inal claim  in  patent  proceedings,  a  relocation  for  previous  default, 
made  while  the  entry  remains  uncanceled,  comes  too  late.  The  general 
rule  is  that  entry  cures  any  failure  to  keep  up  the  annual  labor  prior 
to  entry,  where  that  failure  has  not  been  taken  advantage  of  before 
entry.  Where  before  entry  the  annual  labor  is  neglected,  and  a  re- 
location takes  place,  and  the  entry  still  is  made  in  the  name  of  ap- 
plicant for  patent,  it  has  been  held  that  the  patentee  takes  the  patent 
in  trust  for  the  relocator.117  That  would  certainly  seem  to  be  the 
right  rule  where  the  applicant  for  patent,  after  the  publication  of  his 
notice  of  application  for  patent,  voluntarily  delays  the  entry.118  But 
in  such  case  a  protest  would  secure  the  cancellation  of  the  applica- 
tion, with  a  right  on  the  part  of  the  protestant  to  adverse  on  a  re- 
newed application,  or  to  make  application  for  patent  himself,  and 
would  seem  the  most  appropriate  remedy.119  Where  the  entry  is  de- 
layed by  a  protest  or  an  adverse,  and  the  applicant  is  therefore  not 
at  fault,  the  land  department  has  held  that  the  annual  labor  need  not 
be  kept  up;  12°  but,  as  the  courts  are  not  bound  by  that  departmental 
ruling,  it  is  unsafe  to  neglect  the  annual  labor  in  reliance  upon  .it. 
There  is,  moreover,  a  risk  in  neglecting  the  annual  labor,  even  after 
entry;  for  the  entry  may  for  some  reason  or  other  be  canceled. 

The  Case  of  Brown  v.  Gurney. 

The  Supreme  Court  of  the  United  States  has  recently  decided  a 
case  which  involves  three  attempted  relocations  of  abandoned,  not 
forfeited,  property  affected  by  patent  proceedings.  The  first  was 
held  to  be  premature,  the  second  just  in  time,  and  the  third  too 
late.  The  facts  were  that,  under  an  application  to  patent  a  lode  claim, 
the  land  department  refuse^  to  issue  patent  for  the  whole  claim,  be- 
cause two  portions  of  the  claim  were  separated  by  a  patented  placer, 
and  the  department,  therefore,  required  the  applicant  to  elect  which 
tract  he  would  patent.  He  elected  to  take  and  patent  the  north  end 
of  the  claim  as  originally  laid  out.  Three  different  people  tried  to 

no  See  note  114,  supra. 

117  SOUTH  END  MINING  CO.  v.  TINNEY,  22  Nev.  19,  35  Pac.  89.  Com- 
pare Power  v.  Sla,  24  Mont.  243,  61  Pac.  468. 

us  GILLIS  v.  DOWNEY,  85  Fed.  483.  29  C.  C.  A.  286. 

us  Cleveland  v.  Eureka  No.  1  Gold  Mining  &  Milling  Co.,  31  Land  Dec.  Dep 
Int.  69 ;  Lucky  Find  Placer  Claim,  32  Land  Dec.  Dep.  Int.  200. 

120  Marburg  Lode  Mining  Claim,  30  Land  Dec.  Dep.  Int.  202. 


§  90)  RELOCATIONS   BY   ORIGINAL   LOCATORS.  327 

locate  the  other  piece.  The  first  prospector  (Brown)  located  im- 
mediately after  the  land  office  refused  patent;  the  second  (Gurney) 
located  after  the  applicant  had  filed  written  election  to  take  the  north 
part;  and  the  third  (Small)  located  immediately  after  the  subsequent 
final  order  of  cancellation  of  entry  for  the  other  piece  was  entered 
in  the  land  office.  It  was  held  that  the  refusal  of  a  patent  did  not  re- 
store the  land  to  the  public  domain,  that  the  formal  order  of  cancel* 
lation  merely  recorded  a  pre-existing  fact,  and  that  the  first  pros- 
pector to  locate  after  the  original  entryman  had  relinquished  had 
the  prior  right.  The  ele'ction  to  retain  the  north  end  of  the  claim- 
took  effect  eo  instanti  as  an  abandonment  of  the  south  end.121 


RELOCATIONS  BY  THE  FORFEITING  OWNERS. 

96.  Relocations  by  the  original  locators  or  their  grantees,  based  on  the 
relocators'  own  defaults,  are  justified  by  the  Utah  Supreme 
Court;  but  where  the  same  ground  is  relocated  by  the  same 
parties,  the  discovery  work  is  less  than  the  annual  labor  re- 
quirement, and  relocation  is  resorted  to  in  order  to  escape 
annual  labor,  that  doctrine  seems  unsound. 

Relocations  to  cut  out  delinquent  co-owners  are  questionable,  and 
the  only  safe  plan  is  to  get  rid  of  the  co-owner  by  forfeiture 
under  the  forfeiture  to  co-owner  statute. 

But  the  relocation  may  not  be  made  by  a  third  person.  It  may  be 
attempted  by  the  claim's  owner  himself.  Such  relocations  by  the 
claim's  owner  may  be  attempted  by  (1)  the  same  kind  of  a  reloca- 
tion that  a  third  person  would  make,  or  by  (2)  a  practical  reloca- 
tion by  way  of  amendment,  though  without  the  substitution  of  dis- 
covery work  for  the  annual  labor  requirement.  Where  the  claim's 
owner  attempts  to  relocate  in  the  same  way  others  would  do,  it  is 
usually  merely  an  effort  on  his  part  to  avoid  the  doing  of  annual 
labor.  That  very  effort  shows  that  the  locator  is  not  in  good  faith 
in  retaining  his  claim ;  for  the  right  way  to  show  good  faith  in  that  re- 

121  BROWN  v.  GURNEY,  201  U.  S.  184,  26  Sup.  Ct.  509,  50  L.  Ed.  717.  A 
relocation,  attempted  after  entry  in  the  land  office  and  while  the  entry  stands, 
cannot  sustain  a  suit  to  compel  a  conveyance  of  the  legal  title.  Neilson  v. 
Champaigne  Min.  &  Mill.  Co.  (C.  C.)  Ill  Fed.  655.  The  mere  cancellation  of 
an  entry  does  not  render  the  ground  open  to  relocation.  Rebecca  Gold  Min. 
Co.  v.  Bryant,  31  Colo.  119,  71  Pac.  1110,  102  Am.  St.  Rep.  17 ;  Peoria  &  Colo- 
rado Mill.  &  Min.  Co.  v.  Turner,  20  Colo.  App.  474,  79  Pac.  915.  Where  the 
cancellation  of  entry  was  without  notice  and  unauthorized,  the  issuance  of  a 
patent  excluding  the  land  as  to  which  entry  was  canceled  did  not  render  the 
excluded  land  subject  to  a  relocation,  which  would  defeat  the  applicant'?  right 
to  patent  tkat  land.  Rebecca  Gold  Min.  Co.  v.  Bryant,  supra. 


328  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.  (Ch.  17 

gard  is  to  resume  work  and  to  prosecute  the  resumption  work  with 
vigor.  Nothing,  then,  but  the  clearest  kind  of  language  in  the  stat- 
utes should  justify  a  court  in  deciding  that  a  man  may  relocate  his 
own  claim,  so  as  to  defeat  the  real  object  of  the  mining  laws.122 
That  position  is  further  strengthened  by  the  fact  that  the  common 
law  knows  nothing  of  any  right  in  a  man  to  forfeit  his  own  prop- 
erty in  favor  of  himself.  "Forfeiture  is  not  complete  until  some  one 
else  has  appropriated  the  property."  123 

But,  despite  this  natural  attitude  of  hostility  toward  a  locator  whc 
seeks  to  avoid  the  reasonable  requirements  about  annual  labor,  made 
in  the  mining  statutes,  the  Supreme  Court  of  Utah  has  decided  thai 
the  words  of  the  statute  that  the  mining  claim  on  which  the  requisite 
annual  expenditure  has  not  been  made  "shall  be  open  to  location  in  the 
same  manner  as  if  no  location  of  the  same  had  ever  been  made' 
require  the  recognition  of  the  same  right  in  the  original  locator  to  re- 
locate that  a  third  person  has.124  That  decision  seems  to  be  basec 
upon  the  idea  that  forfeiture  under  the  statute  is  self-executing,  and, 
without  entry,  makes  the  land  as  much  unoccupied  land  of  the  United 
States  as  if  it  had  never  been  occupied;  yet  that  idea  is  clearly  un- 
sound. "It  is  the  entry  of  a  new  claimant,  with  intent  to  relocate  th* 
property,  and  not  mere  lapse  of  time,  that  determines  the  right  of  the 
original  claimant."  125  That  the  locator  can  enter  upon  himself  foi 
no  other  purpose  than  to  hold  the  claim  by  living  up  to  a  smallei 
development  work  requirement  than  the  federal  requirement  of  $10C 
annual  expenditure  amounts  to  is  certainly  an  unnecessary  conclusion 
and  therefore  not  to  be  supported. 

The  only  authorities  cited  by  the  Utah  court  are  Hunt  v.  Patchin  12< 
and  a  land  department  ex  parte  ruling,127  in  both  of  which  decisions 
the  question  was  whether,  where  several  locators  owned  a  mining 
claim  and  all  were  delinquent  as  to  annual  labor,  one  could  relocate 
in  his  own  name  and  cut  out  the  others.  In  Hunt  v.  Patchin  the  re- 
location was  in  the  relocator's  name,  though  with  the  consent  of  al 
interested  in  the  original  claim  and  to  be  held  for  the  benefit  of  all; 
but  in  the  land  department  matter  it  was  seemingly  against  the  protesl 

122  where  the  relocation  is  made  for  fear  the  prior  location  was  defective, 
as  was  the  case  in  Wetzstein  v.  Largey,  27  Mont.  212,  70  Pac.  717,  and  the  an- 
nual labor  is  kept  up,  no  objection  to  the  relocation  can  be  made.    It  is  only 
an  attempt  to  evade  the  annual  labor  requirement  that  is  reprehensible. 

123  McCarthy  v.  Speed,  11  S.  D.  362,  370,  77  N.  W.  590,  593. 

124  WARNOCK  v.  DE  WITT,  11  Utah,  324,  40  Pac.  205. 

125  LITTLE  GUNNELL  CO.  v.  KIMBER,  1  Morr.  Min.  Rep.  (U.  S.)  536,  539, 
Fed.  Gas.  No.  8,402. 

126  35  Fed.  816.  127  Copp,  Min.  Lands,  300. 


§  96)  RELOCATIONS   BY   ORIGINAL   LOCATORS.  329 

of  the  other  owners.  The  land  department  proceeding  was  not  a 
litigated  matter  and  may  be  disregarded,  while  in  the  case  of  Hunt  v. 
Patchin  no  third  person  was  interested  to  upset  the  relocation,  but 
all  the  parties  to  the  suit  were  interested  in  upholding  it.  The  ex- 
cluded co-owners  in  the  original  location  sought  in  Hunt  v.  Patchin, 
and  sought  successfully,  to  have  the  relocator  held  a  trustee  for  them 
as  to  their  proportionate  shares  in  the  relocation.  The  case  is  of  no 
authority  on  the  question  of  the  validity  of  the  relocation,  or  against 
one  whose  interest  demands  that  it  be  declared  invalid.  This  explana- 
tion is  preliminary  to  a  quotation  of  all  the  language  in  the  Utah  case 
relating  to  this  point.  After  stating  the  question  as  follows:  "First, 
can  the  locator  of  a  quartz  mining  claim,  who  has  allowed  his  loca- 
tion to  lapse  by  a  failure  to  perform  the  necessary  work,  make  a  re- 
location, or  new  location  covering  the  same  ground?" — and  after 
quoting  the  relocation  provision  of  the  federal  statute,  the  court  says : 
"We  have  been  referred  to  no  decision  of  any  court  that  has  decided 
the  question  here  presented.  The  right  of  a  locator  to  make  a  new 
location  upon  mining  ground,  after  his  first  location  has  lapsed,  is 
recognized  in  Hunt  v.  Patchin,  35  Fed.  816 ;  and  in  Copp,  U.  S.  Min. 
Laws,  p.  300,  it  is  declared  that  a  prior  locator  has  such  right.  See, 
also,  15  Am.  &  Eng.  Enc.  Law,  p.  551.  We  fail  to  see  any  reason 
why  such  right  should  be  denied.  The  fact  that  a  prior  locator,  after 
his  right  has  lapsed,  may  renew  it  by  resuming  work,  would  appear 
to  be  a  favor  or  right  granted  to  such  prior  locator ;  but  to  give  the 
proviso  [about  resumption]  above  quoted  the  effect  claimed  by  appel- 
lant, would  be  to  deny  to  such  prior  locator  a  substantial  right  al- 
lowed to  strangers.  In  other  words,  such  a  construction,  while  it 
would  allow  to  a  prior  locator  the  right  to  resume  work,  would  destroy 
his  right  to  make  a  new  location.  We  do  not  think  the  proviso  to  the 
act  should  be  construed  to  mean  anything  more  than  that  a  prior 
locator,  in  addition  to  the  rights  of  a  stranger,  should  also  have  the 
right  to  resume  work,  and  thus  relieve  himself  from  the  forfeiture  in- 
curred. This  was  the  view  taken  by  the  court  below,  and  we  think 
it  correct."  128 

Considering  that  this  language  was  used  in  a  state  where,  at  the  time 
of  the  decision  and  since,  discovery  work  need  not  be  done  by  a  loca- 
tor, except  where  district  rules  so  require,  it  seems  as  if  it  gives  a 
delinquent  locator  or  his  grantee  altogether  too  much  latitude  to  be 
supported.  In  a  state  where  discovery  work  on  a  relocation  would 
amount  to  $100  or  more,  it  is,  of  course,  immaterial  whether  the  new 
work  (which,  if  discovery  work,  must  be  done  within  a  period  which 

128  WARNOCK  v.  DE  WITT,  11  Utah,  324,  40  Pac.  205. 


330  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.  (Cll.  IT 

practically  requires  diligence,  or,  if  resumption,  must  be  done  in  about 
the  same  time)  is  called  "discovery  work"  or  "resumption  of  labor," 
and  no  real  harm  is  done,  or  violation  of  the  federal  statute  takes 
place,  by  letting  the  locator  regard  his  performance  either  as  reloca- 
tion or  resumption,  if  it  pleases  his  fancy  to  view  it  as  the  one  rather 
than  the  other;  but  in  a  state  where  no  discovery  work  is  required 
on  a  location  or  relocation  it  is  a  very  different  matter.  In  Alaska, 
California,  and  Utah  such  is  the  case,  except  as  changed  by  district 
rules,  and  almost  everywhere  some  mining  claims  may  be  found  where, 
owing  to  the  nature  of  the  ground,  new  discovery  work  will  not 
amount  to  $100. 

Wherever  new  discovery  work  will  not  equal  or  exceed  the  $100 
annual  expenditure  for  labor  or  improvements  required  on  each  loca- 
tion by  the  federal  statute,  the  true  rule  would  seem  to  be  not  to 
allow  the  delinquent  locator  to  take  advantage  of  his  own  delinquency. 
A  method  to  redeem  his  delinquency  is  pointed  out  by  the  statute, 
.namely,  by  resuming  work  and  diligently  prosecuting  it  until  $100 
worth  of  work  is  completed  for  the  year  in  which  the  last  part  of 
the  work  of  resumption  has  to  be  done.  If  he  does  not  wish  to  re- 
deem his  delinquency  in  the  way  so  pointed  out  by  the  statute,  then, 
since  the  expression  of  one  thing  in  a  statute  is  the  exclusion  of  others, 
and  since  a  penalty  put  upon  a  locator  to  be  enforced  against  him  by 
others  cannot  properly  be  regarded  as  a  privilege  of  his,  his  claim 
should  remain  subject  to  relocation  by  others.129  This  view  finds  sup- 
port in  an  Arizona  case,  where  a  mortgagor  locator  had  a  third  person 
relocate  for  him,  and  then  took  a  deed  from  the  third  person,  and  the 
court  quieted  the  title  against  him  in  favor  of  the  grantee  of  the  pur- 
chaser at  foreclosure  sale.130  While  the  case  was  put  on  the  express 
ground  of  breach  of  trust  duty  on  the  part  of  the  mortgagor,  it  has 
been  held  that  a  suit  to  quiet  title  could  lie  only  on  the  theory  of  the 
invalidity  of  the  relocation.131  The  true  doctrine  would  seem  to  be 
that  of  the  recent  Montana  statute  that  "a  locator  or  claimant  may,  at 

129  Mr.  Lindley  (1  Lindley  on  Mines  [2d  Ed.]  §  405)  and  Messrs.  Morrison 
and  De  Soto  (Morrison's  Mining  Rights  [13th  Ed.]  pp.  124,  125)  have  already 
announced  this  view;  but  Mr.  Snyder  (1  Snyder  on  Mines,  §§  584,  585)  supports 
the  Utah  doctrine. 

130  ALEXANDER  v.  SHERMAN,  2  Ariz.  326,  16  Pac.  45. 

131  Saunders  v.  Mackey,  5  Mont.  523,  6  Pac.  361.     But  see  Duluth  &  I.  R. 
R.  Co.  v.  Roy,  173  U.  S.  587,  19  Sup.  Ct.  549,  43  L.  Ed.  820.    The  case  of  AL- 
EXANDER v.  SHERMAN,  supra,  is  opposed  to  Mr.  Snyder's  notion  (1  Snyder 
on  Mines,  §  585)  that  the  original  locator  can  evade  the  statute  by  getting  a 
third  person  to  relocate  for  him  and  then  deed  the  property  back.     A  subse- 
quent relocator  seemingly  could  quiet  title  against  such  an  evasive  relocation. 


g  96)  RELOCATIONS   BY   ORIGINAL   LOCATORS.  331 

any  time,  relocate  his  own  claim  for  any  purpose  except  to  avoid  the 
performance  of  annual  labor."  132 

Attempted  Relocations  by  Co-Tenants. 

Closely  connected  with  the  matter  just  discussed,  as  the  reference 
to  Hunt  v.  Patchin  shows,  is  the  case  of  an  attempted  relocation  by 
one  of  several  co-tenants  of  an  abandoned  or  forfeited  mining  claim. 
If  the  claim  has  been  technically  and  in  good  faith  abandoned  by  all, 
it  would  seem  as  if  one  could  relocate  with  safety.  The  only  ques- 
tion would  be  whether  an  abandonment  in  good  faith  really  took 
place.133  But  with  reference  to  forfeiture  the  situation  is  different. 
The  whole  question,  in  case  of  forfeiting  for  failure  to  do  assessment 
work,  depends  upon  the  duties  owed  by  one  co-tenant  to  another.  "It 
is  well  settled  that  co-tenants  stand  in  a  certain  relation  to  each  other 
in  reference  to  the  joint  estate,  and  that  a  distinct  title  acquired  by 
one  will  inure  to  the  benefit  of  all.  This  principle  arises  from  the 
privity  subsisting  between  parties  having  a  common  possession  of  the 
same  land  and  a  common  interest  in  the  safety  of  the  possession  of 
each,  and  it  only  inculcates  that  good  faith  which  seems  appropriate 
to  their  relative  position.  It  has  been  applied  to  mining  property  by^ 
the  federal  Supreme  Court."  134 

That  being  so,  the  co-tenant  has  no  more  right  to  take  in  the  claim 
for  himself  by  relocation  than  he  would  have  to  get  it  by  buying  in  a 
tax  title  arising  from  the  failure  of  his  co-tenants  and  himself  to  pay 
the  taxes.135  The  relocation  is  purely  a  forfeiture,  and,  as  the  South 
Dakota  court  points  out,  "forfeiture  is  not  complete  until  some  one 
else  has  appropriated  the  property.  Plaintiff  and  Franklin  continued 
to  be  co-tenants  so  long  as  the  Tin  Bar  claims  continued  to  exist. 
They  continued  to  exist  until  the  ground  was  relocated,  and  during 
every  instant  of  that  time  the  latter  was,  in  law,  incapable  of  per- 
forming any  act  in  hostility  to  his  co-tenant  in  reference  to  the  joint 
estate.  Franklin  was  plaintiff's  co-tenant  at  the  time  he  entered  the 
boundaries  of  either  Tin  Bar  claim  for  the  purpose  of  relocating  the 
ground.  His  entry  for  that  purpose  was  hostile  to  his  co-tenants,  un- 
less he  intended  to  relocate  for  the  benefit  of  all  the  owners  of  the 
Tin  Bar  claims.  It  may  be  that  he  owed  no  duty  to  his  co-tenants  to 
represent  the  claims.  It  may  be  that  he  was  at  liberty  to  refrain  from 

132  Laws  Mont.  1907,  p.  22. 

133  The  interest  of  a  tenant  in  common  connot  be  deemed  abandoned  and 
subject  to  appropriation  by  strangers  because  be  refuses  to  pay  his  part  of  the 
annual  expenditures.     Waring  v.  Crow,  11  Cal.  366. 

is*  McCarthy  v.  Speed,  11  S.  D.  362,  369,  77  N.  W.  590,  592. 
135  But  see  Strang  v.  Ryan,  46  Cal.  33. 


332  ABA^NDONMENT,  FORFEITURE,  AND   RELOCATION.          (Cll.   17 

performing  any  act  in  reference  thereto.  But,  if  he  elected  to  act 
at  all,  he  was  bound  to  act  for  the  benefit  of  all  the  owners.  His 
acts  of  relocation  did  not  terminate  the  fiduciary  relation  between  him- 
self and  plaintiff,  because  they  were,  if  done  for  the  purpose  of  de- 
feating the  rights  of  his  co-tenants,  in  hostility  to  his  interests,  and  if 
they  were  not  done  for  that  purpose  they  of  course  operated  to  the 
benefit  of  all  the  owners.  We  think  the  circuit  court  should  have 
adjudged  the  defendants  to  be  trustees  and  have  enforced  the  trust."136 

The  above  language,  taken  literally,  would  go  to  show  that  the  re- 
location was  absolutely  void;137  but  the  relief  granted  in  the  case 
was  merely  to  declare  the  relocator  a  trustee.  The  cases  seem  to 
justify  the  conclusion  that  one  tenant  in  common  may  relocate  to  cut 
out  the  interests  of  his  co-tenants  at  law,  though  in  equity  he  will 
in  a  proper  case  hold  in  trust  for  them.  The  conclusion  that  the  re- 
location is  good  at  law  seems  sound.138 

It  is  impossible  to  agree  with  Mr.  Lindley's  statement  that,  "if  we 
are  right  in  the  conclusion  reached  in  the  preceding  section  that  the 
original  locator  cannot  treat  his  failure  to  perform  or  resume  work 
as  the  basis  of  a  valid  relocation,  it  must  necessarily  follow  that  one 
of  several  locators,  seeking  to  obtain  the  entire  title  by  reason  of  the 
failure  of  any  of  them  to  fulfill  the  requirements  of  the  law,  is  like- 
wise prohibited  from  making  such  relocation."  139  Take  the  case 
of  one  of  several  locators,  who  notifies  his  co-tenants  in  advance 
that,  unless  they  unite  with  him  in  the  performance  of  the  annual 
labor,  he  will  forfeit  their  interests  by  relocation.  While  it  is  true 
that  the  proper  course  for  him  to  pursue,  to  be  absolutely  safe,  is 
to  perform  the  whole  labor  himself  and  "advertise  the  others  out" 
under  the  forfeiture  to  co-owner  statute,  still,  if  he  wants  to  take  the 
risk  involved  in  the  matter  of  relocation,  why  is  it  inconsistent  to  say 
that  the  legal  title  of  the  interests  of  the  others  vests  in  him  by  the 
relocation?  As  to  his  own  undivided  interest,  the  same  rule  ought  to 
be  applied  as  applies  to  the  case  of  a  locator,  who  attempts  to  relocate 
a  claim  owned  by  him  in  severalty;  but  as  to  the  interest  of  his  co- 
tenants  a  different  rule  may  well  be  applied.  A  man  is  not  delinquent 
as  to  the  part  of  the  annual  labor  due  from  his  co-tenants  in  any  sense 
that  should  stand  in  the  way  of  a  relocation  of  their  interests  by  him- 

136  McCarthy  v.  Speed,  11  S.  D.  362,  370-371,  77  N.  W.  590,  593.     See  Speed 
v.  McCarthy,  181  U.  S.  269,  21  Snp..  Ct.  613,  45  L.  Ed.  855. 

137  Compare,  also,  Royston  v.  Miller  (C.  C.)  76  Fed.  50. 

iss  Doherty  v.  Morris,  11  Colo.  12,  16  Pac.  911;  Saunders  v.  Mackey,  5  Mont. 
523,  6  Pac.  361.  See  Lockhart  v.  Johnson,  181  U.  S.  516,  21  Sup.  Ct.  665,  45 
L.  Ed.  979. 

139  1  Lindley  on  Mines  (2d  Ed.)  §  406. 


§  96)  RELOCATIONS   BT   ORIGINAL  LOCATORS.  333 

self  after  a  full  and  fair  warning  given  by  him  to  them  in  plenty  of 
time  for  them  to  protect  themselves  fully.  It  may  be  that  we  shall 
yet  come  to  the  notion  of  a  relocation  good  in  part  and  bad  in  part; 14 
but,  since  we  have  not  done  so,  is  there  any  real  reason  why  the  good 
part  here  should  not  outweigh  the  bad,  and  make  the  whole  relocation 
good?  Certainly  the  public  policy  is  not  as  clearly  opposed  to  the 
validity  of  the  relocation  in  the  case  of  co-tenancy  as  it  is  in  the  case 
where  the  relocator  owns  the  entire  interest  in  the  claim  he  attempts 
to  relocate.  In  any  event,  the  cases  which  hold  that  a  relocation  by 
one  of  several  tenants  in  common,  on  default  by  all,  is  valid  at  law, 
though  subject  to  equities,141  cannot  be  deemed  wrong  just  because 
the  Utah  case,  which  permits  a  single  locator  to  relocate  his  own 
claims,  must  be  deemed  erroneous. 

It  is  well  settled,  however,  that  one  co-tenant,  who  has  made  a  re- 
location which  his  co-tenants  had  no  reason  to  expect  he  would  make, 
will  be  held  a  trustee  for  his  co-tenants.142  And  even  if  the  theory 
should  be  adopted  that  after  an  attempted  relocation  by  a  co-tenant 
the  original  location  still  exists,  the  co-tenant  attempting  to  relocate, 
so  as  to  oust  his  co-owners  from  title,  cannot  be  deemed  to  have  aban- 
doned or  forfeited  his  undivided  interest  in  the  original  claim.143 

Attempted  Relocation  of  Other  Fiduciaries. 

The  cases  of  relocation  by  other  fiduciaries  than  co-tenants  144  have 
some  slight  bearing  on  the  question  of  relocation  by  a  co-tenant,  and 

140  we  have  reached  that  stage  with  reference  to  the  relocation  back  of 
amended  location  certificates.     In  the  amended  certificates  there  may  be  re- 
lation back  as  to  the  names  of  old  locators,  yet  not  as  to  those  of  new  lo- 
cators.    Tonopah  &  S.   L.  Min.  Co.  v.  Tonopah  Min.  Co.  of  Nevada  (C.  O.) 
125  Fed.  389.     Under  the  last  Montana  statute,   moreover,  a  relocation  by 
the  original   locator  is  no  waiver  of  the  right  acquired  under  the  original 
location,  except  as  to  ground  omitted  from  the  relocation,   and  with   that 
exception  the  locator  may  rely  upon  either  location  or  upon  both  locations. 
Laws  Mont.  1907,  p.  22. 

141  Saunders  v.  Mackey,  5  Mont.  527,  6  Pac.  361 ;  Doherty  v.  Morris,  11  Colo. 
12,  16  Pac.  911.     Strang  v.  Ryan,  46  Cal.  33.     Where  all  co-owners  abandon 
locations,  one  co-owner  may  afterwards  relocate  for  himself  free  from  equi- 
ties.    ROBERTS  v.  DATE,  123  Fed.  238,  59  C.  C.  A.  242. 

142  MCCARTHY  v.  SPEED,  11  S.  D.  362,  77  N.  W.  590 ;    Yarwood  v.  John- 
son, 29  Wash.  643,  70  Pac.  123.     See  Turner  v.  Sawyer,  150  U.  S.  578,  14  Sup. 
Ct.  192,  37  L.  Ed.  1189;    Lockhart  v.  Leeds,  195  U.  S.  427,  25  Sup.  Ct.  76,  49 
L.  Ed.  263 ;   Lockhart  v.  Wills,  9  N.  M.  344,  54  Pac.  336.     So  will  his  grantees, 
who  take  with  knowledge  of  the  facts.     See  Stephens  v.  Golob,  34  Colo.  429, 
83  Pac.  381. 

143  HULST  v.  DOERSTLER,  11  S.  D.  14,  75  N.  W.  270. 

144  The  absurdity  of  calling  the  relation  between  tenants  in  common  one 
of   mutual   confidence,   where  the  facts   do   not  show  that   such   confidence 
really  exists,  has  been  pointed  out.     9  Harv.  Law  Rev.  427. 


334  ABANDONMENT,  FORFEITURE,  AND    RELOCATION.  (Ch.  1 

should  be  noted.  Take,  for  instance,  the  case  of  an  agent  or  of  ; 
servant.  One  who  had  been  employed  for  several  years  as  watchmai 
ancl  custodian  of  a  mining  claim,  and  who,  after  the  termination  o 
that  employment,  undertook  to  find  a  purchaser  for  the  claim,  wa 
held  not  to  have  properly  relocated  the  claim,  because  of  the  fiduciar 
relationship.145  So  an  agent  will  not  be  permitted  to  acquire  titl 
by  adverse  possession  unknown  to  the  principal,  or  be  allowed  to  clain 
an  abandonment  by  the  principal,  because  of  the  failure  of  the  prin 
cipal  to  do  assessment  work  for  a  number  of  years.146  So  a  lesse 
in  possession  will  not  be  allowed  during  the  lease  to  locate  the  par 
of  a  claim  left  by  the  patenting  of  the  discovery  of  the  leased  clain 
by  a  junior  location; 147  but,  as  the  case  so  deciding  goes  clearly  01 
the  ground  of  the  estoppel  of  a  tenant  to  deny  the  landlord's  title,  it  i 
uncertain  whether  the  court  regards  the  new  location  as  invalid,  a 
the  suit  to  quiet  title  may  perhaps  imply,148  or  regards  it  as  valid 
except  that  defendant  will  not  be  heard  to  say  that  it  is  so.  One  win 
has  been  a  lessee  would  seem,  however,  to  be  as  free  to  relocate  afte 
the  termination  of  the  lease  for  a  cause  of  forfeiture  thereafter  hap 
pening  as  the  grantor  of  a  mining  claim  is  free  to  locate  for  a  subse 
quent  delinquency  by  the  grantee,149  but  not,  of  course,  where  th 
lessee  agreed  to  do  the  very  assessment  work  which  is  delinquent.15 
A  vendor  of  mining  property,  who  unlawfully  dispossesses  his  ven 
dee,  attempts  a  relocation  when  the  property  is  not  open  to  relocatior 
and  then  extracts  and  disposes  of  a  material  portion  of  the  ore,  ha 
even  been  denied  a  vendor's  lien  because  of  his  wrongdoing.151  Oi 
the  other  hand,  one  who  sold  a  claim  to  a  corporation,  and  afterward 
became  a  director  in  the  corporation,  was  allowed  to  buy  the  clair 
from  a  third  person,  who  in  good  faith  and  for  himself  had  relocate 

145  Lockhart  v.  Rollins,  2  Idaho  (Hasb.)  540,  21  Pac.  413.  See,  also,  Thomr 
son  v.  Burk,  2  Alaska,  249.  In  Lockhart  v.  Rollins  the  court  treated  the  r< 
location  as  invalid;  but  on  principle  it  was  valid  at  law,  and  the  relocate 
was  a  trustee  for  the  original  locators.  LOCKHART  v.  LEEDS,  195  U.  S 
427,  25  Sup.  Ct.  76,  49  L.  Ed.  263.  • 

i4«  Utah  Mining  &  Mfg.  Co.  v.  Dickert  &  Myers  Sulphur  Co.,  6  Utah,  1& 
21  Pac.  1002,  5  L.  R.  A.  259. 

147  Lowry  v.  Silver  City  Gold  &  Silver  Min.  Co.,  179  U.   S.  196,  21  Sui 
Ct.  104,  45  L.  Ed.  151. 

148  Saunders  v.  Mackey,  5  Mont.   523,  6  Pac.   361.     But  see  Duluth  &  ] 
R.  R.  Co.  v.  Roy,  173  U.  S.  587,  19  Sup.  Ct.  549,  43  L.  Ed.  820. 

149  For  a   case  of  grant,   see  BLAKE  v.   THORNE,  2  Ariz.   347,   16  Pac 
270.     But   see  Drake  v.  Gilpin  Min.   Co.,   16  Colo.  231,  27   Pac.   708.     Coir 
pare  Alexander  v.  Sherman,  2  Ariz.  326,  16  Pac.  45. 

150  Stewart  v.  Westlake,  148  Fed.  349,  78  C.  C.  A.  341. 

151  MINAH  CONSOL.   MIN.   CO.  v.  BRISCOE,  89  Fed.  891,  32  C.  C.  A 
390. 


§  96il)  RELOCATION   BY   AMENDMENT.  335 

the  claim.152  One  who  had  been  a  miner  and  shift  boss  for  another, 
and  in  the  course  of  his  employment  had  learned  that  the  employer  was 
taking  ore  from  unappropriated  land  adjoining  the  employer's  land, 
was  allowed,  after  his  employment  ceased,  to  make  a  valid  location 
of  such  adjoining  land.163  A  relocation  is  legal,  where  made  by  one 
who  conspired  with  a  working  partner  to  have  the  latter  omit  to  do  the 
necessary  annual  work,  and  the  only  remedy  of  the  defrauded  partner 
is  in  equity.15* 


SAME— RELOCATION  BY  AMENDMENT.  . 

96a.  Since  the  boundaries  of  the  claim  may  be  changed  whenever  in- 
tervening rights  of  third  persons  are  not  injured,  and  the 
name  of  the  claim  may  be  varied  so  long  as  third  persons  are 
not  misled,  the  original  locators  may  amend  the  location  no- 
tices and  the  record  to  show  such  changes.  Relocations  by 
amendment  may  be  made,  therefore,  by  the  original  locators; 
but  they  in  no  way  avoid  the  annual  labor  requirement. 

The  term  "relocation"  has  also  been  applied  to  the  case  of  such  a 
change  by  the  locator  of  the  boundaries  or  name  of  the  claim  as  re- 
quires the  recording  of  an  amended  location  certificate,  and  in  the 
case  of  changed  boundaries  a  remarking  of  the  location  on  the  ground. 
By  the  express  terms  of  the  Colorado  statute  this  change  by  amend- 
ment is  called  a  "relocation" ;  the  act,  after  defining  the  proper  cases 
for  amendment  of  the  location  certificate,  adding:  "Provided  that 
such  relocation  does  not  interfere  with  the  existing  rights  of  others 
at  the  time  of  such  relocation,  and  no  such  relocation  or  other  record 
thereof  shall  preclude  the  claimant  or  claimants  from  proving  any  such 
title  or  titles  as  he  or  they  may  have  held  under  such  previous  loca- 
tion." 155 

The  Colorado  statute  is  simply  declaratory  of  that  right  to  vary  the 
boundaries  and  the  name  of  the  claim  which  exists  in  the  absence  of 
statute.  As  was  said  by  the  United.  States  Circuit  Court  for  the  Dis- 
trict of  Nevada:  "It  has  always  been  the  policy  of  the  government 
to  encourage  its  citizens  in  searching  for,  discovering,  and  develop- 
ing the  mineral  resources  of  the  country;  and  this  policy  can  always 
be  best  subserved  by  permitting  the  discoverer  to  rectify  and  readjust 

152  McDermott  Min.  Co.  v.  McDermott,  27  Mont.  143,  69  Pac.  715. 

i53Tlmllmann  v.  Thomas,  111  Fed.  277,  49  C.  C.  A.  317. 

15*  LOCKHART  v.  JOHNSON,  181  U.  S.  516,  21  Sup.  Ot.  665,  45  L.  Ed 
979;  Lockhart  v.  Wills,  9  N.  M.  344,  54  Pac.  336;  Doherty  v.  Morris,  11 
Colo.  12,  16  Pac.  911. 

IBB  Mills'  Ann.  St.  Colo.  §  3160. 


336  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.          (Ch.  17 

his  lines,  whenever  from  any  cause  he  desires  to  do  so,  provided  he 
does  not  interfere  with  or  impair  'the  intervening  rights  of  others.' 
There  is  no  statute,  law,  rule,  or  regulation,  state  or  national,  which 
denies  this  right.  The  amended  certificate  of  location,  when  made, 
becomes  the  completed  location  of  the  discoverer,  and  is  just  as  valid 
as  if  it  had  been  made  in  the  first  instance.  It  necessarily  follows  that 
parties  coming  upon  the  mining  claim  and  ground  described  in  the 
amended  certificate  of  location,  subsequent  to  the  perfection  of  such 
amended  location  in  compliance  with  the  mining  laws,  can  acquire  no 
rights,  because  they  have  not  been  injured  and  have  no  right  to  com- 
plain/' 156  The  above  was  said  with  reference  to  the  Nevada  statute, 
expressly  permitting  relocation  and  amendment;  but  it  is  just  as 
applicable  where  there  is  no  state  statute.157  As  a  matter  of  fact,  how- 
ever, nearly  all  the  mining  law  states  have  express  statutes  upon  the 
subject. 

In  a  sense  the  amendment  statute  covers  things  which  do  not 
amount  to  a  relocation,  as  well  as  things  which  do.  As  was  said  by 
Judge  Hallett:  "It  is,  perhaps,  unfortunate  that  the  question  of 
amending  a  certificate  and  of  changing  the  boundaries  of  a  claim,  which 
amounts  to  a  relocation,  should  be  expressed  in  general  terms  re- 
lating to  both  subjects  and  in  one  section  of  the  law.  But  the  confu- 
sion resulting  from  such  an  attempt  should  not  obscure  the  purposes 
of  the  law."  158  This  confusion,  however,  is  more  apparent  than  real. 
As  a  matter  of  fact  the  Colorado  statute  calls  the  new  certificate  "an 
additional  certificate,"  159  and  we  simply  term  it  an  amendment  of  the 
old  because  the  doctrine  of  relation  applies.  An  amendment  consti- 
tutes a  relocation,  as  contrasted  with  the  completion  of  the  original 
location,160  only  where  the  boundaries  of  the  claim  are  changed; 
but  that  is  too  highly  technical  a  distinction  to  deserve  to  be  empha- 
sized. "It  is  to  the  end  that  the  prospector  may  cure  any  defects  in 
his  location  and  conserve  and  protect  the  results  of  his  industry  that 
the  authority  [to  file  an  additional  certificate]  is  given."  161  Natural- 
ly all  kinds  of  cases  were  grouped  in  the  statute  under  the  name  "re- 
location." It  is  to  be  regretted  that  new  names  were  not  evolved  to 


156TONOPAH  &  S.  L.  MIN.  CO.  v.  TONOPAH  MIN.  CO.  OF  NEVADA 
(C.  C.)  125  Fed.  389,  396.  To  the  same  effect  is  McEvoy  v.  Hyman  (C.  C.) 
25  Fed.  596,  600. 

157  Thompson  v.  Spray,  72  Cal.  528,  14  Pac.  182. 

iB&McEVOY  v.  HYMAN  (C.  C.)  25  Fed.  596,  599,  600. 

159  Duncan  v.  Fulton,  15  Colo.  App.  140,  147,  61  Pac.  244. 

leo  See  Strepey  v.  Stark,  7  Colo.  614,  5  Pac.  111. 

lei  Duncan  v.  Fulton,  15  Colo.  App.  140,  148,  61  Pac.  244,  246. 


§  96a)  RELOCATION   BY  AMENDMENT.  .337 

cover  the  two  classes  of  cases  of  amendment,  and  the  term  "reloca- 
tion" kept  for  cases  of  forfeiture  for  failure  to  perform  annual  labor. 

It  has  been  urged  that  "amended  certificate"  is  not  a  proper  term 
by  which  to  refer  to  the  new  location  certificate  filed,  and  that  an 
"additional  certificate,"  as  the  paper  is  called  in  the  Colorado  statute, 
is  more  accurate.182  That  was  urged  in  a  case  where  it  was  also  said 
of  the  original  and  the  additional  certificate  that  "we  believe  the  law 
to  be  that,  though  neither  one  as  a  whole  may  be  absolutely  correct 
and  in  perfect  conformity  to  the  statute,  yet  if  in  both  and  from  both 
there  may  be  found  and  deduced  all  that  the  law  requires,  the  statute 
being  otherwise  complied  with,  the  miner's  record  is  complete,  and  his 
title  is  perfect."  16S  The  latter  doctrine  would  seem  to  be  just  as  con- 
sistent, however,  with  the  view  that  the  new  certificate  is  an  amend- 
ed certificate  while  the  doctrine  of  relation  seems  to  justify  fully  the 
designation  of  the  new  certificate  as  an  amendment  of  the  old.  It 
has  been  held,  for  instance,  that  the  new  certificate  always  relates  back 
to  and  takes  effect  from  the  filing  of  the  first,  if  there  are  no  inter- 
vening adverse  rights  to  be  affected  by  such  relation  back.164  It 
thus  performs  the  very  function  of  an  amendment.  "This  is  the  func- 
tion and  proper  office  of  an  amendment — to  put  the  original  in  per- 
fect condition  as  if  it  had  been  complete  in  the  first  instance."  165 

Accordingly,  although  made  and  filed  after  suit  has  been  begun, 
an  amended  certificate  is  admissible  in  evidence  when  accompanied  or 
followed  by  an  instruction  to  the  jury  to  disregard  it  if  the  other  party 
to  the  suit  acquired  adverse  rights  prior  to  the  filing  of  the  new  cer- 
tificate for  record.166  That  decision  is  defensible,  in  the  absence  of 
supplemental  pleadings,  only  upon  the  theory  of  amendment  and  rela- 
tion back. 

Relation  Back  on  Amendment. 

Despite  the  express  wording  of  the  statutes  that  relocation  by 
amendment  shall  not  interfere  with  the  rights  of  others  which  exist 

162  15  Colo.  App.  147,  61  Pac.  246. 

les  15  Colo.  App.  148,  61  Pac.  246.  Compare  Slothower  v.  Hunter,  15 
Wyo.  189,  88  Pac.  36. 

104  McGINNIS  v.  EGBERT,  8  Colo.  41,  5  Pac.  652;  Jordan  v.  Schuer- 
man,  6  Ariz.  79,  53  Pac.  579;  BUNKER  HILL  &  SULLIVAN  MINING  & 
CONCENTRATING  CO.  v.  EMPIRE  STATE-IDAHO  MINING  &  DEVEL- 
OPING CO.  (C.  C.)  134  Fed.  268 ;  TONOPAH  &  S.  L.  MIN.  CO.  v.  TONOPAH 
MIN.  CO.  OF  NEVADA  (C.  C.)  125  Fed.  389. 

i65McEVOY  v.  HYMAN  (C.  C.)  25  Fed.  596,  600. 

i«6  Strepey  v.  Stark,  7  Colo.  614,  5  Pac.  Ill;    Milwaukee  Gold  Extraction 
Co.  v.  Gordon  (Mont.)  95  Pac.  995.     See  Butte  Consol.  Min.  Co.  v.  Barker, 
35  Mont.  327,  89  Pac.  302,  90  Pac.  177. 
COST.  MIN. L.— 22 


338  ABANDONMENT,  FORFEITURE,  AND    RELOCATION.  (Cll.  IT 

at  the  time  of  the  filing  of  the  new  certificate,  and  despite  the  property 
right  doctrine  to  that  effect  which  exists  in  the  absence  of  statute,  there 
have  been  cases  where  the  relation  back  was  allowed  despite  the  in- 
tervention of  adverse  rights  of  one  kind  or  another.167  With  the  ex- 
ception of  those  which  go  upon  the  theory  that  a  premature  relocation 
by  a  third  party  is  not  a  vested  intervening  right,168  these  cases  seem 
to  go  upon  an  artificial  reasoning  about  the  difference  between  a  void 
and  a  defective  location  certificate.  On  principle  the  sole  question 
should  be  whether  the  record  in  the  one  case  of  amendment,  or  the 
boundaries  and  record  in  the  other  case  of  amendment,  created  a 
situation  where  third  persons  could  locate,  and  whether  the  additional 
certificate,  or  the  changed  boundaries  of  the  original  claim  and  the 
additional  certificate  together,  will  injuriously  affect  the  new  locators 
if  relation  back  is  allowed.  The  fact  remains,  however,  that  the  courts 
in  general  insist  in  broad  language  that  the  intervening  rights  of  others 
may  be  cut  out,  where  there  is  no  change  of  boundaries,  and  where  the 
additional  certificate  corrects  a  certificate  which  is  not  void.169  If  all 
thoSe  certificates  which  admit  of  a  relocation  by  third  persons  are 
called  void,  there  can  be  no  objection  to  this  way  of  stating  the  mat- 
ter ;  but  in  Colorado,  at  least,  a  certificate  so  void  as  to  permit  of  re- 
location by  others  has  been  allowed  to  be  amended  after  relocation 
by  others,  so  as  to  cut  out,  by  relation  back,  the  interests  of  those  oth- 
ers.170 The  Colorado  law  is  probably  more  correctly  represented  by  a 

167  McEVOY  v.  HYMAN  (C.  C.)  25  Fed.  596;  Cheesman  v.  Shreeve  (C.  C.)  40 
Fed.  787. 

i«8  in  CRAIG  v.  THOMPSON,  10  Colo.  517,  16  Pac.  24,  a  relocation  by  a 
third  person  was  attempted  prematurely,  coming  before  the  previous  lo- 
cator's time  to  record  was  up.  Later,  and  after  the  time  for  record  had 
passed,  the  original  locator  recorded  a  defective  location  certificate.  Four- 
teen months  after  that  he  filed  an  additional  location  certificate,  and  the 
relocator  was  held  not  to  have  acquired  intervening  rights  which  would 
prevent  relation  back. 

169  Morrison  v.   Regan,   8  Idaho,   291,    67   Pac.   955 ;     McEvoy   v.   Hyman 
(C.  C.)  25  Fed.  596 ;  Frisholm  v.  Fitzgerald,  25  Colo.  290,  53  Pac.  1109. 

170  in  FRISHOLM  v.  FITZGERALD,  supra,  the  record  was  void  under  both 
the  federal  statutes  and  the  state  statutes,  and  yet,  because  the  boundaries 
of  the  claim  were  not  changed,  the  amendment  was  upheld,  though  it  cut 
out  an  intervening  relocation  by  others.     Whether  that  case  will  be  followed 
in  Colorado,  since  SULLIVAN  v.   SHARP,  33  Colo.   346,  80  Pac.   1054,  has 
held  that  a  location,  void  because  based  upon  a  discovery  within  the  limits 
of  a  valid  existing  location,  cannot  be  perfected  by  amendment,  query?     In 
regard  to  FRISHOLM  v.  FITZGERALD,  Messrs.  Morrison  and  De  Soto  say: 
"The  opinion  in  the  case  is  peculiar  in  this:   That  it  is  the  personal  view  of 
one  judge,  and  both  of  his  associates  refused  to  concur.     It  is  not  the  opinion 
of  a  court,  and  therefore  has  no  obligation  as  a  precedent  binding  the  nisi 
prius  courts  of  that  state.     *     *     *     We  consider  untenable  the  proposition 


§  96a)  RELOCATION   BY   AMENDMENT.  339 

case  in  the  Colorado  Court  of  Appeals,  which  court  has  since  been 
merged  in  the  Supreme  Court.  The  doctrine  of  the  latter  case  is  that 
if  a  location  certificate  is  so  defective  as  to  fail  absolutely  to  comply 
with  statutory  requirements  and  define  the  claim  it  is  void,  and  a  sec- 
ond certificate  cannot  be  considered  as  amendatory  of  it,  so  as  to  relate 
back  to  the  date  of  the  first,  but  that  if  the  first  certificate  is  not  void, 
but  is  only  lacking  in  technical  detail,  a  second  certificate  may  be  deem- 
ed amendatory,  and  the  doctrine  of  relation  may  be  deemed  to  apply.171 
The  Colorado  Supreme  Court,  however,  is  in  the  apparent  situation 
of  denying  amendment  where  the  location  itself  is  void  for  some  rea- 
son other  than  defective  record,172  and  allowing  it  where  the  lo- 
cation is  void  only  because  the  location  certificate  is  void.173  If  the 
federal  Supreme  Court  ever  has  the  question  before  it,  surely  such  a 
distinction  will  be  deemed  by  it  to  be  untenable. 

Whether  the  location  is  subject  to  relocation  by  others  because  of 
no  discovery  prior  to  the  relocation,174  or  because  only  a  void  lo- 
cation certificate  has  been  recorded,175  an  amendment  of  the  rec- 
ord should  not  be  allowed  to  cure  the  old  location,  so  as  to  cut  out 
intervening  rights,176  though  there  would  seem  to  be  no  objection 
whatever  to  allowing  it  to  cure  the  old  location,  or,  more  exactly, 
to  perfect  it,  where  no  rights  of  third  persons  intervene  prior  to  the 
new  certificate.  That  is  because  the  order  in  which  the  acts  of  loca- 
tion occur  is  immaterial,  and  by  supposition  the  new  certificate  com- 
pletes them.177  It  needs  to  be  repeated  that,  whatever  the  party  calls 

that  any  amendment  can  cure  a  void  record  as  against  an  intervening  loca- 
tion." Morrison's  Min.  Eights  (13th  Ed.)  134. 

171  Moyle  v.  Bullene,  7  Colo.  App.  308,  44  Pac.  69. 

172  SULLIVAN  v.  SHARP,  33  Colo.  346,  80  Pac.  1054. 

ITS  FRISHOLM  v.  FITZGERALD,  25  Colo.  290,  53  Pac.  1109. 
174  Beals  v.  Cone,  27  Colo.  473,  62  Pac.  948,  83  Am.  St.  Rep.  92. 
17  5  Tombstone  Town  Site  Cases,  2  Ariz.  272,  15  Pac.  26. 

176  BROWN  v.  GURNET,  201  U.  S.  184,  26  Sup.  Ct.  509,  50  L.  Ed.  717. 
In    SULLIVAN  v.   SHARP,   33   Colo.   346,   80   Pac.   1054,    the   question   was 
whether  a  junior  location,  void  because  of  a  discovery  within  senior  ground, 
could  be  validated  by  amendment  after  the  senior  was  forfeitable  for  failure 
to  perform  annual  labor.    The  case  does  not  disclose  the  fact;    but  it  seems 
a  fair  inference   that  the  claimants  of  the  senior   location   resumed   work 
after   the  attempted  amendment  by   the  junior  and  before   any  other   acts 
of  location  by  the  junior.    If  so,  the  case,  which  was  an  adverse  suit  by  the 
senior  against  the  junior  in  patent  proceedings,  might  possibly  be  supported 
upon 'the  ground  that  the  amendment  was  not  a  sufficient  renewal  of  the 
old  location  to  amount  to  the  kind  of  a  relocation  that  will  prevent  resump- 
tion.    Principle  seems  to  require,  however,  that  the  amendment  be  deemed 
to  perfect  the  old  location  as  a  new  one,  and  that,  when  so  perfected,  it  be 
held  to  be  a  complete  relocation. 

177  SULLIVAN  v.  SHARP,  supra,  is  contra.     See  preceding  note. 


340  ABANDONMENT,  FORFEITURE,  AND    RELOCATION.          (Ch.  17 

the  paper  he  files,  it  is  a  question  of  fact  whether  what  has  been  ac- 
complished is  an  amendment,  or  is  a  relocation  in  a  strict  sense.  The 
difficulty  arises  in  part  because  an  additional  certificate  need  not 
state  the  purpose  for  which  it  is  filed.178  "If  ground  once  included 
within  the  location  of  a  lode  mining  claim  be  abandoned,  and  a 
new  location  made  thereon  as  abandoned  ground,  said  location  dates 
only  from  the  relocation  thereof  as  abandoned  ground,  and  does  not 
relate  back  to  or  obtain  any  rights  on  account  of  the  location  which 
has  been  abandoned,  and  that  the  law  makes  a  distinction  between 
a  relocation  and  an  amended  location  certificate,  although  both  may 
be  -designated  as  amendments  in  such  location  certificates."  179 

Accordingly  a  relocation  "right  over  the  top"  of  the  old  location, 
made  in  order  to  take  in  more  ground,  and  in  order  to  change  the 
name  of  the  claim,  is  practically  nothing  but  an  amendment  of  the 
old.180  Not  every  amendment  to  change  the  name  of  a  claim  is 
certain  to  be  valid,  however;  for  if  the  new  name  is  adopted  to 
deceive  the  co-owner  whose  interest  is  being  forfeited  for  his  fail- 
ure to  contribute  to  annual  labor,  or  to  deceive  one  who  would  other- 
wise adverse  in  patent  proceedings,  that  is  fraud  for  which  appropriate 
relief  will  doubtless  be  given.181  So  where  one  locator  gets  con- 
veyances from  his  fellow  locators  for  the  purpose  of  obtaining  a 
patent  for  the  benefit  of  all,  then  files  an  additional  location  certifi- 
cate taking  in  further  ground  in  his  own  name,  and  afterwards  ob- 
tains a  patent  to  the  claim  as  described  in  the  amended  certificate, 
it  is  held  that  the  additional  ground  is  acquired  by  him  in  trust  for 
all.182  The  court  said  that  "the  amended  location  certificate  pre- 
supposes and  is  based  upon  an  original.  Halleck  was  only  able  to 
file  an  amended  location  certificate  by  reason  of  the  f^4-  tW  the 
original  had  been  filed  by  his  grantors,"  183  and  accordingly  he  was 
seeking  to  reap  a  profit  out  of  trust  property.  So  an  amended  loca- 
tion of  the  major  portions  of  the  original  location,  made  by  one  who 

178  JOHNSON  v.  YOUNG,  18  Colo.  625,  628,  629,  34  Pac.  173. 

i7»Cheesnaan  v.  Shreeve  (C.  C.)  40  Fed.  787.  In  BEALS  v.  CONE,  27 
Colo.  473,  62  Pac.  948,  83  Am.  St.  Rep.  92,  a  so-called  amendment  was  called 
a  relocation,  and  the  location  dated  only  from  the  new  certificate.  Prior 
to  that  time  the  ground  had  been  located  by  others,  so  the  relocation  was 
ineffective. 

iso  SHOSHONE  MIN.  CO.  v.  RUTTER,  87  Fed.  801,  31  C.  C.  A.  223. 
See  Richards  v.  Wolfling,  98  Cal.  195,  32  P.  971;  Johnson  v.  Young,  18 
Colo.  625,  34  Pac.  173. 

131  Morrison's  Mining  Rights  (13th  Ed.)  135,  136.  See  Seymour  v.  Fisher, 
16  Colo.  188,  27  Pac.  240. 

iss  HALLACK  v.  TRABER,  23  Colo.  14,  46  Pac.  110. 

18323  Colo.  15,  16,  46  Pac.  110. 


§  97)  FORFEITURE   OF   IMPROVEMENTS.  341 

has  parted  with  title  to  the  claim,  cannot  be  recognized  as  securing 
any  right  to  him,  but  may  secure  a  benefit  for  his  grantee,  if  he 
acted  as  the  grantee's  agent  for  the  purpose.184 

Acts  Accompanying  Relocation  by  Amendment. 

With  reference  to  relocation  by  amendment,  just  as  with  refer- 
ence to  relocation  on  forfeiture  of  the  previous  location,  whatever  is 
necessary  to  the  success  of  the  relocation  must  be  done.  If  the 
boundaries  are  changed,  then  the  location  notice  and  markings  should 
be  changed  to  conform  thereto,  and  all  posts  and  monuments,  as 
well  as  discovery  workings,  etc.,  made  to  comply  with  the  local  stat- 
utory requirements.  As  the  amendment  takes  effect  by  relation,  the 
discovery  shaft,  if  already  the  required  depth,  need  not  be  deepened, 
and  in  general,  so  far  as  the  original  location  conformed  to  the  law 
and  is  not  necessarily  altered  by  the  amendment,  no  change  need 
be  made.  Then  the  new  location  certificate  must,  of  course,  be  execut- 
ed with  the  same  particularity  in  every  detail  that  was  required  in 
the  original. 

THE  FORFEITURE  OF   IMPROVEMENTS. 

97.  The  relocator  of  a  forfeited  claim  is  held  to  be  entitled  to  all  im- 
provements made  by  the  original  locator  which  have  actually 
become  a  part  of  the  land. 

With  reference  to  mining  claims  relocated  in  such  a  way  as  to 
forfeit  the  right  of  previous  locators,  it  will  often  be  of  considerable 
importance  to  ascertain  whether  improvements  are  forfeited  with  the 
land.  While  the  cases  on  the  point  are  not  numerous,  the  question 
is  treated  by  the  courts  as  one  of  whether  the  improvements  have  ac- 
tually become  a  part  of  the  land.J  Ever  since  the  early  California 
case,  in  which  it  was  held  that  "an  engine  and  pump  became  a  part 
of  the  realty,  although  located  upon  public  land," 185  the  identity 
of  the  improvement  with  the  realty  has  seemed  to  be  the  test.  The 
one  who  makes  an  agricultural  land  entry  and  the  locator  of  a  mining 
claim  both  know,  when  they  annex  personalty  to  the  realty,  that  the 
outstanding  legal  title  is  in  the  United  States,  and  consequently  they 
are  to  be  judged  by  the  same  rule  of  fixtures  as  is  applied  against  the 
mortgagor  in  a  state  where  the  mortgagee  has  the  legal  title  to  the 
land.  In  such  a  state  the  secret  intent  of  the  mortgagor  in  putting 

3  s  *  Gray  Copper  Lode,  18  Land  Dec.  Dep.  Int.  536. 

t  Compare  the  water  right  case  of  De  Wolfskill  v.  Smith,  5  Cal.  App.  175, 
89  Pac.  1001. 

185MERRITT  v.  JUDD,  14  Cal.  59. 


342  ABANDONMENT,  FORFEITURE,  AND   RELOCATION.          (Ch,   IT 

personalty  on  the  land  cuts  no  figure,  and  the  sole  question  is  wheth- 
er, if  there  had  been  no  mortgage,  the  courts  would  presume  that 
they  were  improvements  on  the  land.186  For  instance,  an  engine 
house  with  a  15  horse  power  engine,  with  b'oiler  and  attachments, 
fastened  to  the  realty  and  used  for  the  development  of  the  mining 
claim,  were  held  to  be  real  property,  belonging  to  a  relocator.  and 
not  personalty,  subject  to  execution  for  the  previous  locator's  debts.187 
On  the  other  hand,  a  cabin  set  on  blocks,  unattached  to  the  soil,  and 
a  portable  fence,  resting  wholly  on  the  surface  of  the  land,  were 
held  not  to  be  part  of  the  realty.188 

The  land  department  has  ruled  that  old  improvements  obtained  by 
relocation  do  not  count  as  part  of  the  $500  expenditure  required  be- 
fore patent  can  be  obtained.189  Whether  those  old  improvements  will 
count  for  such  purpose  if  the  relocator  actually  pays  the  old  locator 
for  them,  query?  One  who  buys  a  mining  claim  may  have  the 
benefit  of  all  expenditures  made  by  his  grantor ;  19°  but  a  relocator 
is  not  a  grantee  of  the  forfeiting  locator,  and  it  is  difficult  to  see 
why  paying  the  old  locator  for  the  improvements  should  enable  them 
to  count  towards  the  $500,  when  paying  a  third  person  for  work 
which  he  did  on  the  claim  for  his  own  benefit  does  not  count  as  part 
of  the  required  annual  expenditure.191 

ise  Southbridge  Savings  Bank  v.  Mason,  147  Mass.  500,  18  N.  E.  406,  1 
L.  R.  A.  350;  McConnell  v.  Blood,  123  Mass.  47,  25  Am.  Rep.  12. 

187ROSEVILLE  ALTA  MIN.  CO.  v.  IOWA  GULCH  MIN.  CO.,  15  Colo. 
29,  24  Pac.  920,  22  Am.  St.  Rep.  373.  See  accord  as  to  fixtures  on  nonmin- 
eral  public  lands.  Treadway  v.  Sharon,  7  Nev.  37;  McKiernan  v.  Hesse,  51 
Cal.  594;  Collins  v.  Bartlett,  44  Cal.  371. 

iss  Pennybecker  v.  McDougal,  48  Cal.  160. 

189  Yankee  Lode  Claim,  30  Land  Dec.  Dep.  Int.  289;  Russell  v.  Wilson 
Creek  Milling  Co.,  30  Land  Dec.  Dep.  Int  322.  See  cases  infra,  p.  343,  note  2. 

loo  Tarn  v.  Story,  21  Land  Dec.  Dep.  Int.  440. 

191  LITTLE  GUNNELL  CO.  v.  KIMBER,  1  Morr.  Min.  Rep.  (U.  S.)  536V 
Fed.  Gas.  No.  8,402. 


§  98)  UNCONTESTED  APPLICATION   TO   PATENT   CLAIMS.  343 

CHAPTER  XVIII. 
UNCONTESTED  APPLICATION  TO  PATENT  MINING  CLAIMS. 

98.  The  Five  Hundred  Dollars  Expenditure. 

99.  The  Patenting  of  Lode  Claims. 
99a.          The  Survey  Requirements. 

99b.  The  First  Set  of  Application  Papers. 
99c.  The  Final  Set  of  Application  Papers. 
99d.  Entry  and  Patent. 

100.  The  Patenting  of  Mill  Sites. 

101.  The  Patenting  of  Placer  Claims. 
lOla.  Known  Lodes  Within  Placers. 

102.  Conflicts  of  Lodes  and  Placers  with  Older  Locations. 

THE   FIVE  HUNDRED   DOLLARS   EXPENDITURE. 

98.  Any  qualified  owner  of  a  mining  claim  upon  which  he  and  his 
grantors  have  expended  $5OO  -worth  of  labor  or  have  made 
$50O  worth  of  improvements,  of  a  kind  that  meets  the  re- 
quirements of  annual  labor  or  annual  improvements,  may  ap- 
ply for  a  patent  for  such  claim. 

By  the  express  terms  of  the  federal  statute  any  qualified  owner  of  a 
mining  claim  upon  which  $500  worth  of  labor  has  been  expended  or 
$500  worth  of  improvements  has  been  made  by  himself  or  his  grant- 
ors may  apply  for  a  patent  therefor.1  The  first  thing  for  an  intend- 
ing applicant  for  patent  for  a  mining  claim  to  do  is  to  make  sure  that 
the  required  expenditure  on  the  claim  has  taken  place,  or  can  be  com- 
pleted during  the  period  of  the  publication  of  notice  of  the  applica- 
tion for  patent.  He  must  bear  in  mind  that  improvements  made  by  a 
former  locator  who  has  abandoned  or  forfeited  the  claim  cannot  be 
included  in  the  amount,2  though  it  seems  that  the  applicant  may  count 
toward  the  $500  any  work  performed  by  himself  in  good  faith  on  a 
placer  prior  to  its  location.8  By  the  express  terms  of  the  statute  a 
grantee  applicant  may  count  expenditures  made  by  his  grantor ;  4  and 

1  Rev.  St.  U.  S.  §  2325  (U.  S.  Comp.  St.  1901,  p.  1429). 

2  Land  Office  Regulations,  rule  158 ;    Yankee  Lode  Claim,  30  Land  Dec. 
Dep.  Int.  289;    Russell  v.  Wilson  Creek  Consolidated  Mining  &  Milling  Co., 
30  Land  Dec.  Dep.  Int.  322 ;   Tough  Nut  No.  2  and  Other  Lode  Mining  Claims, 
36  Land  Dec.  Dep.  Int.  9 ;   Aldeberan  Mining  Co.,  36  Land  Dec  Dep.  Int.  551. 

s  Clark  v.  Taylor,  20  Land  Dec.  Dep.  Int.  455. 

*  Rev.  St.  U.  S.  §  2325  (U.  S.  Comp.  St   1901,  p.  1429). 


344  UNCONTESTED   APPLICATION   TO    PATENT   CLAIMS.  (Ch.  18 

he  may  do  this  even  though  he  amends  the  location  certificate  so  as  to 
change  the  name  of  the  claim.5 

Although  the  federal  statute  seems  by  its  terms  to  contemplate  a 
separate  application  for  patent  for  each  claim,  the  land  department 
has  exercised  its  discretion  by  permitting  one  application  to  embrace 
several  contiguous  locations  held  in  common ;  *  and  in  the  case  of  the 
application*  for  patent  for  such  a  group  or  consolidation  of  claims  the 
land  department,  reversing  earlier  rulings  that  $500  in  improvements 
as  a  total  for  the  so-called  consolidated  claim  was  enough,  now  re- 
quires proof  that  an  amount  equal  to  $500  for  each  location  has  been 
expended  upon  and  for  the  benefit  of  the  entire  group.6  Whatever 
work  may  be  counted  as  part  of  the  annual  labor  and  improvements 
will  count  as  part  of  the  $500  expenditure  required  of  an  applicant  for 
patent,7  and  discovery  work  will  also  count.  "The  expenditures  re- 
quired may  be  made  from  the  surface,  or  in  running  a  tunnel,  drifts, 
or  cross-cuts  for  the  development  of  the  claim.  Improvements  of  any 
other  character,  such  as  buildings,  machinery,  or  road  ways,  must  be 
excluded  from  the  estimate  unless  it  is  shown  clearly  that  they  are  as- 
sociated with  actual  excavations,  such  as  cuts,  tunnels,  shafts,  etc.,  are 
essential  to  the  practical  development  of,  and  actually  facilitate  the 
extraction  of  mineral  from,  the  claim/'  8  A  stamp  mill,  used  exclusive- 
ly in  connection  with  the  claim,  does  not,  however,  meet  this  test  in 
the  eyes  of  the  land  department.9 

The  $500  expenditure  should  be  complete  before  the  application  for 
patent;  but  a  completion  before  the  expiration  of  the  period  of  pub- 
lication of  the  application  for  patent  will  do.10 

5  Tarn  v.   Story,  21  Land  Dec.  Dep.  Int.  440. 

*  A  group  of  contiguous  claims  may  be  included  in  one  application,  even 
though  some  are  lodes  and  some  are  placers.  Mayflower  Gold  Mining  Co., 
29  Land  Dec.  Dep.  Int.  7.  Claims  which  merely  corner  on  one  another  are 
not  contiguous.  HIDDEN  TREASURE  CONSOL.  QUARTZ  MINE,  35  Land 
Dec.  Dep.  Int.  485. 

6  Land  Office  Regulations,  rule  48.     See  opinion,  27  Land  Dec.  Dep.  Int.  91. 
The  expenditure  of  $500  claimed  for  each  location  must  come  after  such  loca- 
tion is  made.    Aldeberan  Mining  Co.,  36  Land  Dec.  Dep.  Int.  551. 

7  Copper  Glance  Lode,  29  Land  Dec.  Dep.  Int.  542. 
s  Land  Office  Regulations,  rule  157. 

»  Monster  Lode  Mining  Claim,  35  Land  Dec.  Dep.  Int.  493.  In  case  of  a 
lode  claim  and  of  a  mill  site  claim  in  the  same  survey,  the  expenditure  of 
$300  upon  the  lode  claim  must  be  shown.  Land  Office  Regulations,  rule  159. 

10  NIELSON  v.  CHAMPAGNE  MINING  &  MILLING  CO.,  29  Land  Dec. 
Dep.  Int.  491.  Whether  $500  has  been  expended  in  work  or  improvements 
is  for  the  land  department  to  decide,  and  cannot  be  considered  in  an  adverse 
suit.  Wilson  v.  Freeman,  29  Mont.  470,  75  Pac.  84,  68  L.  R.  A.  833 ;  Stolp  v. 
Treasury  Gold  Min.  Co.,  38  Wash.  619,  80  Pac.  817. 


§  99a)  SURVEY   REQUIREMENTS.  345 


THE    PATENTING    OF    LODE    CLAIMS. 

99.  The  steps  in  the  patenting  of  lode  claims  are:  (a)  The  survey; 
(b)  the  filing  of  the  application  papers;  (c)  the  filing  of  the 
final  papers;  (d)  the  issuance  of  patent. 


SAME— THE  SURVEY  REQUIREMENTS. 

99a.  The  order  of  proceeding  for  survey  consists  of  (1)  the  selection 
by  the  applicant  of  a  deputy  mineral  surveyor,  whose  appoint- 
ment to  make  the  survey  the  applicant  will  request;  (2)  the 
application  to  the  surveyor  general  for  an  order  of  survey: 
(3)  the  order  of  the  surveyor  general  that  a  survey  be  made 
by  the  deputy  mineral  surveyor  selected  by  the  applicant;  (4) 
the  survey  by  the  deputy,  including  the  preparation  by  him 
of  the  field  notes  and  of  a  preliminary  plat  of  the  property; 
and  (5)  the  approval  of  the  survey  by  the  surveyor  general, 
including  the  preparation  and  delivery  to  the  deputy  mineral 
surveyor  for  the  applicant,  or  to  the  applicant  himself  of  the 
approved  field  notes  and  copies  of  the  final  plat. 

Selection  of  Deputy  Mineral  Surveyor. 

The  next  thing  for  an  applicant  for  patent  to  do  in  the  case  of  lode 
claims,  after  finding  that  the  $500  has  been  expended  on  the  claim,  or 
will  be  so  expended  in  the  proper  time,  is  to  select  a  deputy  mineral 
surveyor  of  his  district  to  make  the  necessary  survey  when  ordered  to 
do  so  by  the  surveyor  general.  The  applicant  and  the  deputy  mineral 
surveyor  make  their  own  bargain  about  charges,  and  the  United  States 
assumes  no  responsibility  for  the  payment  of  the  charges. 

As  the  deputy  mineral  surveyor  will  be  ordered  to  survey  according 
to  the  recorded  location  certificate,  he  should  be  consulted  as  to  the 
desirability  of  recording  an  amended  location  certificate.  Some  ex- 
pense and  considerable  delay  in  the  application,  and  some  possibly  se- 
rious results  in  adverse  suits,  may  thus  be  avoided.f 
Application  for  Order  for  Survey. 

Having  arranged  with  a  deputy  mineral  surveyor,  and  put  the  rec- 
ord in  the  right  shape  by  amendment,  the  claimant  makes  application  to 
the  surveyor  general  of  his  district  for  an  order  of  survey.11  This  ap- 
plication must  state  the  name  of  the  claimant  in  full,  the  name  of  each 
location  for  which  patent  is  to  be  asked,  the  name  of  the  land  and  min- 
ing districts  in  which  the  claim  is  located,  and  the  name  of  the  United 
States  deputy  mineral  surveyor  to  whom  the  order  of  survey  is  to  is- 

t  Golden  Rule,  etc.,  Co.,  37  Land  Dec.  Dep.  Int.  95. 

11  Applications  for  survey  of  claims  in  Arkansas  must  be  made  to  the 
Commissioner  of  the  General  Land  Office.  Land  Office  Regulations,  rule  34. 


346  UNCONTESTED   APPLICATION   TO   PATENT   CLAIMS.  (Ch.  IS 

sue.  The  application  must  be  accompanied  by  a  certified  copy  of  the 
recorded  location  certificate  or  amended  location  certificate.  The 
signature  to  this  application  must  be  in  the  hand-writing  of  the  claim- 
ant, his  agent,  or  attorney.12  In  the  application,  the  applicant  should 
also  notify  the  surveyor  general  that  he  has  deposited,  for  office  fees 
of  the  surveyor  general,  the  amount  estimated  by  the  latter  in  the 
circular  issued  by  him  to  applicants.13  This  amount  of  fees  must  be 
deposited  to  the  credit  of  the  treasurer  of  the  United  States  with 
an  assistant  United  States  treasurer  or  with  some  designated  deposi- 
tory among  the  national  banks  in  the  district.  On  making  the  de- 
posit, of  fees  the  claimant  receives  triplicate  certificates  of  deposit. 
He  sends  the  original  of  these  certificates  to  the  Secretary  of  the  Trea- 
sury in  Washington,  and  the  duplicate  to  the  surveyor  general  to  whom 
he  has  applied  for  a  survey,  but  retains  the  triplicate  himself  as  a  re- 
ceipt. The  land  department  for  a  long  time  held  that  the  fees  would 
in  no  case  be  refunded,  but  that,  if  not  expended  on  the  application, 
they  might  be  applied  on  other  surveys  for  the  applicant.14  Recently, 
however,  the  land  department  has  in  part  overruled  that  holding,  and 
has  announced  that  section  2402,  Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901, 
p.  1478),  authorizes  repayment  to  the  depositors  of  the  unearned  por- 
tion of  a  mining  survey  deposit.J 

The  Order  for  Survey. 

Upon  the  application,  after  proof  of  the  deposit  of  fees,  the  survey- 
or general  gives  the  claim  a  survey  number,  and  thereafter,  unless 
events  compel  its  abandonment,  the  survey  is  known  in  his  office  by 
that  survey  number.  Thereupon  he  issues  an  order  of  survey  to  the 
United  States  deputy  mineral  surveyor  designated  by  the  applicant. 
This  order  of  survey  is  accompanied  by  a  copy  of  the  location  or 
amended  location  certificate  in  conformity  with  which  the  survey  is  to 
be  made,  and  issues  as  a  matter  of  course.  The  remedy  for  a  refusal 
to  issue  it  is  by  appeal  to  the  Commissioner  of  the  General  Land  Of- 
fice, and  from  him  to  the  Secretary  of  the  Interior. 

The  first  applicant  for  survey  of  the  ground  has  priority  of  survey. 
An  order  to  survey  the  same  ground  will  not  issue  until  the  first  sur- 

12  Tipton  Gold  Mining  Co.,  29  Land  Dec.  Dep.  Int.  718. 

is  In  the  case  of  group  applications,  one  location  pays  the  regular  deposit 
fee,  and  each  of  the  other  locations  pays  a  slightly  smaller  deposit.  The 
surveyor  general's  circular  of  estimated  fees  \vill  state  the  amounts. 

i*  Elijah  M.  Dunphy,  8  Land  Dec.  Dep.  Int.  102. 

J  GOLDEN  EMPIRE  MIN.  CO.,  36  Land  Dec.  Dep.  Int.  561.  In  that  case 
however  the  land  department,  impelled  thereto  by  another  statute,  refused  a 
request  of  the  depositor  to  have  the  unearned  portion  of  a  mining  deposit  cred- 
ited to  another  applicant  for  an  order  of  survey. 


§  993  SURVEY   REQUIREMENTS.  347 

vey  is  perfected  and  the  plats  delivered,  unless  the  first  applicant  is 
shown,  after  notice  to  him,  to  have  abandoned  the  survey  or  to  be  de- 
ferring it  for  vexatious  purposes. 

The  Survey. 

The  United  States  deputy  mineral  surveyor  must  go  on  the  ground 
personally  and  make  the  survey  in  accordance  with  the  survey  instruc- 
tions of  the  land  department.**  He  is  expected  to  survey  according  to 
the  lines  of  the  original  survey,  and  no  serious  departure  from  those 
lines  will  be  allowed  by  the  surveyor  general,  unless  an  amended  loca- 
tion certificate  is  recorded  and  an  amended  order  of  survey,  based  on 
a  certified  copy  of  the  amended  certificate,  is  issued.  For  such  amend- 
ed survey  order  and  the  additional  work  in  the  office  an  extra  charge 
is  made  by  the  surveyor  general,  and  if  new  ground  is  included  by  the 
amended  location  certificate,  a  new  survey  number  will  be  given  in 
the  amended  survey.  It  is  the  business  of  the  surveyor  to  make  the 
end  lines  of  the  claim  parallel,  to  conform  the  claim  to  the  legal 
limits,  and,  where  the  rights  of  third  persons  are  not  injuriously  affect- 
ed thereby,  to  swing  the  claim  so  that  it  will  lie  lengthwise  along  the 
vein.  It  is  for  the  surveyor  general  to  determine  whether  the  ^  changes 
so  made  are  important  enough  to  require  an  amended  location  certifi- 
cate. Where  a  group  of  claims  is  included  in  one  application,  the 
boundary  lines  of  each  location  must  be  run.18 

The  Surveyor's  Field  Notes. 

The  United  States  deputy  mineral  surveyor  takes  notes  of  his  survey, 
giving  the  description  of  the  claim  by  courses  and  distances,  tying  it 
to  natural  objects  and  permanent  monuments,  showing  its  conflict  with 
other  claims,  and  stating  the  nature  and  value  of  the  work  done  and 
improvements  made  upon  the  claim.  These  notes,  called  his  "field 
notes,"  contain  a  certificate  that  the  value  of  the  work  done  and  im- 
provements made  on  the  claim,  or  on  each  claim  in  the  case  of  a 
group,  is  not  less  than  $500,  and  are  sworn  to  by  the  United  States 
deputy  mineral  surveyor.  These  field  notes,  and  a  plat  of  the  prop- 
erty which  helps  to  explain  them,  are  sent  by  the  deputy  surveyor  to 
the  surveyor  general. 

The  Approval  of  Survey. 

The  surveyor  general  reviews  the  field  notes,  and  compares  the  depu- 
ty surveyor's  plat  with  the  surveyor  general's  official  connected  plat.16 

**  The  deputy  mineral  surveyor  must  execute  all  surveys  in  his  own  proper 
person  under  penalty  of  having  the  surveys  rejected  if  he  does  not  do  so. 
Homer  Santee,  36  Land  Dec.  Dep.  Int.  286. 

iz-ARGILLITE  ORNAMENTAL  STONE  CO.,  29  Land  Dec.  Dep.  Int.  585. 

i«  "The  United  States  surveyor  general  for  each  state  keeps  what  is  called 


;348  UNCONTESTED    APPLICATION    TO    PATENT    CLAIMS.         (Ch.    18 

If  any  error  is  found,  the  field  notes  and  the  surveyor's  plat  are  re- 
turned to  the  deputy  mineral  surveyor  for  correction.17  When,  at 
last,  the  field  notes  and  the  surveyor's  plat  are  found  to  be  correct,  the 
final  plat  is  made  up  by  the  surveyor  general,  and  the  survey  is  ap- 
proved in  writing  by  him. 

The  surveyor  general  prepares  four  copies  of  the  plat  and  one  copy  of 
the  original  field  notes.18  He  retains  in  his  office  one  plat  and  the  orig- 
inal field  notes,19  sends  one  copy  of  the  final  plat  to  the  register  of  the 
local  land  office  in  which  the  patent  application  must  be  filed,  and  sends 
two  other  copies  of  the  plat,  with  a  copy  of  the  approved  field  notes, 
to  the  deputy  surveyor  for  the  claimant,  or  to  the  claimant  himself. 
Attached  to  each  copy  of  the  final  plat  is  the  surveyor  general's  certifi- 
cate that  the  requisite  $500  worth  of  expenditure  for  labor  and  im- 
provements has  taken  place  on  each  location.20  The  latter  certificate  is 
not  binding  on  the  land  department,  but  establishes  prima  facie  the 

the  'connected  plat,'  importing  to  show  every  approved  survey  in  relation 
to  each  other  on  its  proper  section.  Where  the  first  survey  on  any  section 
made  an  erroneous  call  for  a  government  corner,  say  1,300  feet,  when  the 
proper  measurement  was  1,600  feet,  it  was  platted  as  1,300  feet  distant.  A 
second  survey,  correctly  measured,  would  show  a  certain  distance  from  the 
corner,  but,  of  course,  would  not  tie  to  the  first  survey  as  traced  on  the 
connected  plat.  Instead  of  recognizing  the  error  as  soon  as  discovered,  the 
-department  persistently  for  years  compelled  each  successive  applicant  to 
treat  the  first  survey  as  correct  and  tie  to  it  accordingly.  This  resulted  in 
the  issue  of  patents  which  really  overlapped  prior  surveys ;  but  the  field 
notes  appeared  clear  of  any  overlap.  Conversely,  an  overlap  and  conse- 
quent exclusion  would  appear  where  there  was  in  fact  no  conflict  with  any 
prior  survey.  It  was  to  remedy  this  state  of  affairs  that  Rev.  St.  U.  S.  § 
2327  (U.  S.  Comp.  St.  1901,  p.  1431),  was  amended  in  1904."  Morrison's 
Mining  Rights  (13th  Ed.)  56,  57. 

17  The  applicant  cannot  be  prejudiced  by  the  failure  of  the  surveyor  to 
include  all  the  land  called  for  by  the  location  notice,  if,  on  the  discovery  of 
the  mistake,  a  resurvey  promptly  takes  place.  Basin  Mining  &  Concentrating 
Co.  v.  White,  22  Mont.  147,  55  Pac.  1049.  For  the  procedure  in  case  a  mineral 
surveyor  makes  an  inaccurate  survey  and  after  due  notice  fails  to  rectify  it, 
see  Golden  Rule,  etc.,  Co.,  37  Land  Dec.  Dep.  Int.  95. 

is  Land  Office  Regulations,  rule  34.  ". 

19  Laud  Office  Regulations,   rule  34. 

20  This  certificate  may  be  made  within  the  60  days'  publication  of  notice 
of  application  for  patent  (Land  Office  Regulations,  rule  48 ;    Rev.  St.  U.  S. 
§  2325  [U.   S.  Comp.   St.   1901,  p.  1429]),  and  will  be  accepted  in  the  patent 
proceedings,  even  though  not  filed  until  after  the  expiration  of  the  publica- 
tion period  (NIELSON  v.  CHAMPAGNE  MINING  &  MILLING  CO.,  29  Land 
Dec.  Dep.  Int.  491).     Accordingly  the  improvements  may  be  completed  with- 
in the  period.     Id     The  surveyor  general  may  obtain  his  information  as  to 
the  value  of  labor  and  improvements  from  his  own  observations,  or  those  of 
his  deputy,  or  from  the  testimony  of  persons  having  knowledge  of  the  sub- 
ject.    United  States  v.  King,  83  Fed.  188,  27  C.  C.  A.  509. 


§  99b)  FIRST   SET   OF   APPLICATION    PAPERS.  3491 

mineral  character  of  the  land,  the  amount  of  the  work,  and  the  cor- 
rectness of  the  survey.21 

The  transcript  of  the  field  notes,  which,  with  the  two  copies  of  the 
final  plat,  is  sent  to  the  deputy  surveyor  for  the  claimant,  or  to  the 
claimant  himself,  is  known  as  the  "approved  field  notes."  These  copies 
of  plats  and  approved  field  notes  the  deputy  surveyor,  who  is  forbid- 
den  by  statute  and  by  land-office  rule  from  acting  as  attorney  in  mineral 
claims,22  turns  over  to  the  applicant's  attorney,  who  is  to  take  charge  of 
the  actual  application  for  a  patent. 

Promptly  upon  the  approval  of  this  survey  the  surveyor  general 
must  advise  the  land  department  at  Washington  and  the  appropriate 
local  land  office  of  the  fact  of  survey.23 

SAME— THE  FIRST  SET  OF  APPLICATION  PAPERS. 

99b.  The  first  set  of  papers  filed  by  the  applicant  includes  (6)  three 
copies  of  the  notice  of  application  for  patent  posted  on  the 
claim,  one  copy  having  attached  an  affidavit  showing  that  the 
notice  and  a  copy  of  the  final  plat  were  posted  in  a  conspicu- 
ous place  on  the  claim;  (7)  a  copy  of  the  final  plat;  (8)  a 
copy  of  the  approved  field  notes;  (9)  the  application  for  pat- 
ent; (10)  the  proof  of  citizenship  by  affidavit  of  the  appli- 
cant, and,  if  the  applicant  is  a  corporation,  by  a  certified 
copy  of  the  corporation's  charter  or  certificate  of  incorpora- 
tion; (11)  the  publisher's  agreement,  which  is  the  contract 
of  the  proper  newspaper  publisher  to  publish  the  notice  of 
application  for  patent  and  to  hold  the  applicant  alone  re- 
sponsible for  the  charges  of  publication;  (12)  a  certified  copy 
of  each  location  notice;  and  (13)  the  abstract  of  title  of  each 
claim  or  equivalent  evidence  of  title  in  the  applicant. 

The  filing  of  these  papers  is  at  once  followed  by  the  posting  of  the 
notice  and  plat  in  the  local  land  office  and  by  the  publication 
of  the  notice  of  application  for  patent.  The  notice  of  ap- 
plication for  patent  must  remain  posted  on  the  claim  and  in 
the  land  office,  and  must  be  published  for  the  full  period  of 
60  days,  and  within  that  period  adverse  claims  may  be  filed. 

The  Notice  of  Application  for  Patent. 

The  first  step  in  the  land  office  proceedings  is  to  prepare  and  post 
on  the  mining  location  sought  to  be  patented  a  notice  of  the  intention 

21UNITED  STATES  v.  IRON  SILVER  MIN  CO.,  128  U.  S.  673,  685,  9 
Sup.  Ct.  195,  32  L.  Ed.  571 ;  Russell  v.  Maxwell  Land  Grant  Co.,  158  U.  S.  253, 
15  Sup.  Ct  827,  39  L.  Ed.  971.  See  United  States  v.  King,  83  Fed.  188,  27 
C.  C.  A.  509 ;  United  States  v.  King,  9  Mont.  75,  22  Pac.  498. 

22  Rev.  St.  U.  S.  §  452  (U.  S.  Comp.  St.  1901,  p.  257) ;    Land  Office  Regula- 
tions, rule  128.     See  Lavagnino  v.  Uhlig,  26  Utah,  1,  71  Pac.  1046,  99  Am. 
St.  Rep.  808.    But  see  Hand  v.  Cook  (Nev.)  92  Pac.  12. 

23  Land  Office  Regulations,  rule  37. 


350  UNCONTESTED   APPLICATION   TO   PATENT   CLAIMS.          (Ch.  18 

to  apply  for  a  patent. $  This  notice,  of  which  at  least  four  copies  are 
pr  epared,  must  give  the  date  of  posting,  the  name  of  the  claimant,  the 
name  of  the  claim,  the  number  of  the  survey,  the  mining  district  and 
county,24  and  the  names  of  adjoining  and  conflicting  claims  as  shown 
by  the  plat  survey.25  Though  the  rules  do  not  expressly  call  for  it,  be- 
cause one  of  the  certified  final  plats  must  be  posted  on  the  claim  with 
the  notice  of  application  for  patent,  a  description  of  the  claim  by  metes 
and  bounds  will' naturally  be  added. 

The  posting  must  be  in  some  conspicuous  place  upon  the  claim,** 
and  must  be  done  in  the  presence  of  at  least  two  disinterested  credible 
witness-es,  who  make  affidavit  to  the  fact.  This  affidavit  constitutes  the 
proof  of  posting  the  notice  and  plat,  and  attached  to  it  and  made  a  part 
of  it  is  a  second  copy  of  the  posted  notice  of  application  for  patent. 
The  third  copy  is  signed  by  the  applicant,  to  be  posted  later  in  the 
land  office.  The  fourth  copy  is  to  go  to  the  publisher. 

The  Application  for  Patent. 

The  next  thing  prepared  is  the  application  for  patent  itself.  This  is 
"the  sworn  statement  of  the  claimant  that  he  has  the  possessory  right 
to  the  premises  therein  described  in  virtue  of  compliance  by  himself 
(and  by  his  grantors  if  he  claims  by  purchase)  with  the  mining  rules, 
regulations,  and  customs  of  the  mining  district,  state,  or  territory  in 
which  the  claim  lies,  and  with  the  mining  laws  of  Congress,  such  sworn 
statement  to  narrate  briefly,  but  as  clearly  as  possible,  the  facts  con- 
tituting  such  compliance,  the  origin  of  his  possession,  and  the  basis 
of  his  claim  to  a  patent."  26 

That  statement  would  call  for  everything  contained  in  the  notice  of 
application  for  patent,  and,  in  addition,  a  short  history  of  the  claim, 
a  description  of  the  improvements  thereon,  a  reference  to  the  approv- 
ed field  notes  for  a  fuller  description  of  the  claim  and  the  improve- 
ments, and  a  statement  that  the  notice  and  plat  were  posted.27  Where 

$  Because  all  the  copies  of  the.  notice  are  prepared  at  one  time,  and  be- 
cause the  one  to  be  published  must  state  that  the  application  for  patent  has 
been  made  (Rev.  St.  U,  S.  §'  2325  [U.  S  Comp.  St.  1901,  p.  1429]),  all  the 
notices  usually  read  "has  applied  for  patent."  For  the  notice  posted  on  the 
claim  "is  applying  for  patent"  would  seem  to  be  the  proper  wording. 

24  A  mistake  as  to  county  has  been  held  to  be  fatal.     Wright  v.  Sioux  Con- 
solidated Mining  Co.,  29  Land  Dec.  Dep.  Int.  154,  289. 

25  Land  Office  Regulations,  rule  39.     Only  those  shown  by  the  plat  need  be 
given.     Lizzie  Elison  et  al.,  29  Land  Dec.  Dep.  Int.  250. 

**  The  statute  contemplates  that  the  notice  and  the  plat  shall  be  prominently 
and  openly  displayed  in  such  a  position  that  they  can,  without  being  removed, 
be  conveniently  inspected  and  read  by  the  public.  Tom  Moore  consolidated 
Mining  Co.  v.  Nesmith,  36  Land  Dec.  Dep.  Int.  199. 

2«  Land  Office  Regulations,  rule  41. 

27  Unless  the  notice  and  plat  are  posted  before  the  application  for  patent 


§  99b)  FIRST   SET   OF  APPLICATION  PAPERS.  351 

several  contiguous  claims  are  covered  by  one  application,  the  land  de- 
partment should  be  fully  advised  in  the  application  of  the  total  num- 
ber of  claims,  their  relative  situations,  and,  where  a  common  improve- 
ment is  claimed,  the  place  of  that  improvement.  These  things  should 
all  be  delineated  properly  on  an  authenticated  map  or  diagram.28 

Proof  of  Citizenship. 

The  application  should  also  state  the  citizenship  of  the  applicant,29 
though  it  is  usual  to  furnish  a  separate  affidavit  about  that.  "In  case 
of  an  incorporated  company,  a  certified  copy  of  their  charter  or  certifi- 
cate of  incorporation  must  be  filed,"  80  to  prove  citizenship.  If  the  ap- 
plicant is  a  corporation  of  a  state  other  than  that  where  the  mining 
claim  is  situated,  it  must  prove  that  it  has  complied  with  the  laws  of 
the  latter  state  as  to  foreign  corporations.31  In  the  case  of  an  individ- 
ual, his  own  affidavit  of  citizenship  is  enough.32  "In  case  an  appli- 
cant has  declared  his  intention  to  become  a  citizen,  or  has  been  natur- 
alized, his  affidavit  must  show  the  date,  place,  and  court  before  which 
he  declared  his  intention,  or  from  which  his  certificate  of  citizenship 
issued,  and  present  residence."  33 

By  Whom  and  before  Whom  the  Oath  to  the  Application  may  be 
Taken. 

The  application  for  patent  and  affidavits  required  of  the  applicant 
must  be  verified  under  oath  before  an  officer  authorized  to  administer 
oaths  in  the  land  district  where  the  claim  is  situated.  If  the  application 
is  not  sworn  to  before  such  an  officer,  the  local  officers  do  not  get  ju- 
risdiction of  the  proceedings  34  unless  the  case  is  one  under  the  amend- 
ment of  1882.  By  the  amendment  of  1880  to  Rev.  St.  U.  S.  §  2325  (U. 

is  filed,  the  application  is  held  by  the  land  department  to  be  void  ab  initio. 
DE  LONG  v.  HINE,  9  Copp's  L.  O.  114. 

as  James  Carretto  and  Other  Lode  Claims,  35  Land  Dec.  Dep.  Int.  361. 
Claims  which  merely  corner  on  one  another  are  not  contiguous,  and  hence 
not  entitled  to  be  included  in  one  application.  HIDDEN  TREASURE  CON- 
SOL.  QUARTZ  MINE,  35  Land  Dec.  Dep.  Int.  485. 

2»  A  corporation's  notice  of  application  for  patent  need  not,  however,  des- 
ignate the  state  or  territory  where  it  is  incorporated.  Holman  v.  Central 
Montana  Mines  Co.,  34  Land  Dec.  Dep.  Int.  568. 

so  Land  Office  Regulations,  rule  66. 

si  Alta  Mill  Site,  8  Land  Dec.  Dep.  Int.  195,  197.  The  land  department  re- 
gards a  corporation  as  a  citizen  of  the  State  in  which  it  is  created.  Louisville 
Gold  M.  Co.  v.  Hayman  Min.  &  T.  Co.,  33  Land  Dec.  Dep.  Int.  680. 

32  Rev.  St.  U.  S.  §  2321  (U.  S.  Comp.  St.  1901,  p.  1425) 

ss  Land  Office  Regulations,  rule  68. 

34  North  Clyde  Quartz  Mining  Claim  and  Mill  Site,  35  Land  Dec.  Dep.  Int. 
455.  ^  The  fact  that  the  application  is  sworn  to  before  a  notary  who  is  secre- 
tary *of  the  corporation  applicant  is  not  enough  to  require  a  new  application 
-and  affidavit,  unless  the  notary  is  also  a  stockholder  or  otherwise  beneficial- 


352  UNCONTESTED   APPLICATION   TO   PATENT   CLAIMS.         (Ch.   18 

S.  Comp.  St.  1901,  p.  1429),  it  is  provided  that,  where  the  claimant  for 
a  patent  is  not  a  resident  of  or  within  the  land  district,  the  application 
and  the  affidavits  may  be  made  by  his  authorized  agent  conversant  with 
the  facts.35  Also  by  the  amendment  of  1882  to  Rev.  St.  U.  S.  §  2321, 
it  is  provided  that  applicants  for  .mineral  patents  residing  out  of  the 
district  may  make  oath  of  citizenship  before  the  clerk  of  any  court  of 
record,  or  before  any  notary  public  of  any  state  or  territory.36  With- 
in the  district  the  statute  permits  affidavits  to  be  verified  before  any 
officer  authorized  to  administer  oaths.37  If  they  are  verified  before  a 
justice  of  the  peace,  a  county  clerk's  certificate  of  the  justice's  official 
character  should  be  attached. 

Where  the  application  is  verified  by  an  agent,  his  written  power  of 
attorney,  reciting  the  reason  for  his  appointment,  should  be  filed  with 
the  first  set  of  papers.38  Where  a  corporation  applies  for  patent,  the 
safest  practice  is  to  have  it  execute  a  power  of  attorney  to  some  resi- 
dent agent ;  for  the  affidavit  of  its  president  or  other  officer  authoriz- . 
ed  to  make  the  application  may  be  invalid  for  various  reasons.39  If, 
however,  an  officer  acts,  a  resolution  authorizing  him  to  do  so  should 
be  passed  by  the  board  of  directors,  and  a  copy,  certified  by  the  proper 
corporate  officers  under  the  corporate  seal,  should  be  sent  in  with  the 
first  set  of  application  papers. 

Where  several  co-owners  are  making  application  for  patent,  the  ap- 
plication and  all  affidavits,  except  that  of  citizenship,  may  be  sworn  to 
by  one  in  behalf  of  all.40  Each  must  make  his  own  affidavit  of  citizen- 

ly  interested  in  the  corporation.  MILFORD  METAL  MINES  INV.  CO.,  35 
Land  Dec.  Dep.  Int.  174.  No  effect  will  be  given  to  the  subsequent  filing  of  a 
properly  verified  affidavit.  El  Paso  Brick  Co.,  37  Land  Dec.  Dep.  Int.  155. 

35  21  Stat.  61,  c.  9,  §  1.  This  has  been  held  to  apply  to  a  case  of  temporary 
absence.  W.  B.  Frue  et  al.,  on  the  Topsey  Mine,  7  Copp's  L.  O.  20.  But 
if  the  resident  applicant  is  within  the  land  district  he  cannot  have  the  af- 
fidavits executed  by  an  agent,  and  if  he  does  it  is  fatal  to  the  application. 
Rico  Lode,  8  Land  Dec.  Dep.  Int.  223;  CROSBY  AND  OTHER  LODE 
CLAIMS,  35  Land  Dec.  Dep.  Int.  434. 

3022  Stat  49,  c.  106,  §  2  (U.  S.  Comp.  St.  1901,  p.  1425). 

3T  Rev.  St.  U.  S.  §  2325  (U.  S.  Comp.  St.  1901,  p.  1429). 

as  Every  affidavit  by  the  agent  should  recite  the  nonresidence  of  the  claim- 
.ant,  the  residence  of  the  agent,  and  the  fact  that  the  agent  is  conversant  with 
the  facts. 

30  For  instance,- the  land  department  refuses  to  receive  an  affidavit  sworn 
to  by  the  corporation's  president  outside  of  the  state  which  incorporated  the 
corporation.  LOUISVILLE  GOLD  MINING  CO.  v.  HAYMAN  MINING  & 
TUNNEL  CO.,  33  Land  Dec.  Dep.  Int.  680. 

40  Ayers  v.  Daly,  3  Copp's  L.  O.  196.  "When  a  claim  is  owned  in  com- 
mon, it  is  sometimes  convenient  to  have  a  quitclaim  executed  by  the  others 
to  one  of  their  number,  placing  the  title  for  the  time  being  in  his  name ;  the 
grantors  securing  themselves  by  title  bond  or  otherwise."  Morrison's  Mining 
Rights  (13th  Ed.)  449. 


§  99b)  FIKST  SET  OF  APPLICATION  PAPEES. 


ship,  unless  as  an  association  of  persons  unincoi 
by  their  duly  authorized  agent.41  "Any  party  appl 
trustee  must  disclose  fully  the  nature  of  the  trust 
the  cestui  que  trust ;  and  such  trustee,  as  well  as  the 
furnish  satisfactory  proof  of  citizenship;  and  the  names  of  beneficia- 
ries, as  well  as  that  of  the  trustee,  must  be  inserted  in  the  final  certifi- 
cate of  entry."  42 

The  Publisher's  Agreement. 

In  addition  to  the  proof  of  citizenship,  an  agreement  with  the  pub- 
lisher of  the  newspaper,  to  be  designated  by  the  register  of  the  local 
land  office  as  published  nearest  the  claim,48  that  he  will  hold  the  ap- 
plicant alone  responsible  for  the  charges  of  publication,  must  be  fur- 
nished.44 The  maximum  newspaper  charges  are  fixed  by  rule,45  and 
enforced  by  requiring  a  newspaper  to  be  a  reputable  newspaper  before 
it  can  be  selected,  and  by  declaring  that  a  newspaper  charging  exces- 
sive prices  is  not  reputable.46 

The  selection  of  the  newspaper  being  in  some  instances  discretionary 
with  the  register,47  the  applicant,  in  case  of  doubt,  finds  out  in  advance 
what  paper  to  get  an  agreement  with.  Where  there  are  several  in  the 
same  town,,  the  register  usually  selects  the  one  the  attorney  suggests. 
The  nearest  newspaper  by  the  most  usually  traveled  route  seems  the 
land  office  rule ;  but  the  nearest  in  a  direct  line  is  probably  what  was 
intended,48  and,  as  the  register's  discretion  is  subject  to  review  on  ap- 
peal, should,  it  seems,  be  insisted  upon  in  case  of  doubt.4' 


41  Land  Office  Regulations,  rules  66,  67. 

42  Land  Office  Regulations,  rule  54.    A  citizen  of  the  United  States,  act- 
ing as  trustee  for  an  alien  corporation,  cannot  make  a  mineral  entry  for  the 
benefit  of  such  corporation.    CAPRICORN  PLACER,  10  Land  Dec.  Dep.  Int. 
641.    And  if  an  entry  is  canceled  for  that  reason,  where  the  fact  that  the 
corporation  was  alien  was  suppressed,  repayment  will  not  be  allowed.     MARY 
McM.  LATHAM,  20  Land  Dec.  Dep.  Int.  379. 

43  Rev.  St  U.  S.  §  2325  (U.  S.  Comp.  St  1901,  p.  1429);   Condon  v.  Mam- 
moth Mining  Co.,  14  Land  Dec.  Dep.  Int  138. 

44  Land  Office  Regulations,  rule  45. 
4  5  Land  Office  Regulations,  rule  89. 

46  CHAS.  W.  STEELE,  3  Land  Dec.  Dep.  Int.  115. 

47  Bretell  v.   Swift,  17  Land  Dec.   Dep.   Int.  558;    Instructions,  26  Land 
Dec.  Dep.  Int.  145. 

48  See  HAYNES  v.  BRISCOE,  29  Colo.  137,  67  Pac.  156,  holding  similar 
language  in  the  forfeiture  to  co-owner  statute  to  mean  the  nearest  in  a  di- 
rect line. 

4 »  Tough  Nut  and  Other  Lode  Claims,  32  Land  Dec.  Dep.  Int.  359;   North- 
ern Pac.  R.  Co.,  32  Land  Dec.  Dep.  Int  611. 

COST.MIN.L.— 23 


354  UNCONTESTED   APPLICATION    TO   PATENT   CLAIMS.          (Cll.  18 

Abstracts  of  Title. 

The  last  things  to  furnish  are  a  certified  copy  of  each  location  notice 
and  an  abstract  of  title  of  each  claim.  The  legal  custodian  of  the  rec- 
ords of  transfers  or  the  duly  authorized  abstracter  of  titles  must  certi- 
fy to  the  abstract,  and  must  state  that  no  conveyances  affecting  the  ti- 
tle to  the  claim  or  claims  in  question  appear  of  record  other  than  those 
set  forth.50  Abstracters  must  attach  to  each  abstract  certified  by  them 
the  certificate  of  authority  called  for  by  rule  42. 51 

The  land  office  requirement  that  the  abstract  of  title  shall  be  brought 
down  to  the  date  of  filing  the  application  for  patent 52  has  been  taken 
to  mean  to  include  the  date  of  application,  and  to  meet  that  situation 
it  was  formerly  the  practice  to  furnish  certified  copies  of  the  location 
certificates  at  the  time  the  application  for  patent  is  filed,  and  a  few 
days  later  to  send  on  the  abstract  of  title  certified  to  a  date  after  the 
date  of  the  application  for  patent.63  Under  rule  42  of  the  Land  Of- 
fice Mining  Regulations,  as  amended  December  28,  1907,  that  practice 
would  now  seem  to  be  compulsory. 

The  record  title  shown  in  the  abstract  starts,  of  course,  with  the  orig- 
inal location  certificate,  and  the  object  of  requiring  the  abstract  is 
that  the  government  may  be  assured  that  the  applicant  for  patent  is  in 
lawful  possession  of  the  claim.54  It  should  be  borne  in  mind  that  "each 
member  of  an  association  of  persons  seeking  to  acquire  the  legal  title  to 
lands  under  the  mining  laws  must  own  an  interest  in  the  claim,  or  in 
each  claim  of  a  group  embraced  in  the  joint  application  for  patent."  55 

Titles  Based  on  Adverse  Possession. 

In  those  cases  coming  under  Rev.  St.  U.  S.  §  2332  (U.  S.  Comp.  St. 
1901,  p.  1433),  which  statute  permits  evidence  of  adverse  possession 
for  the  local  limitation  period  to  establish  a  right  to  a  patent,  a  loca- 
tion certificate,  copies  of  conveyances,  or  abstracts  of  title  need  not 
be  furnished;  but  instead  the  applicant  "will  be  required  to  furnish  a 
duly  certified  copy  of  the  statute  of  limitation  of  mining  claims  for  the 
state  or  territory,  together  with  his  sworn  statement,  giving  a  clear  and 
succinct  narration  of  the  facts  as  to  the  origin  of  his  title,  and  likewise 
as  to  the  continuance  of  his  possession  of  the  mining  ground  covered 
by  his  application,  the  area  thereof,  the  nature  and  extent  of  the  mining 

BO  Land  Office  Regulations,  rule  42,  as  amended  December  28,  1907. 
el  id.  B2  Id. 

53  Morrison's  Mining  Rights  (13th  Ed.)  435. 

54  Daniel  Cameron,  4  Land  Dec.  Dep.  Int.  515,  516.    The  statutes  contem- 
plate that  applicants  for  mineral  patent  shall  have,  at  the  date  of  filing  the  ap- 
plication, full  possessory  right  or  title  to  the  claim  for  which  patent  is  sought. 
Lackawanna  Placer  Claim,  36  Land  Dec.  Dep.  Int.  36. 

55  GOLDEN  CROWN  LODE,  32  Land  Dec.  Dep.  Int.  217,  219. 


§  99b)  FIRST   SET   OF  APPLICATION   PAPERS.  353 

that  has  been  done  thereon,  whether  there  has  been  any  opposition  to 
his  possession,  or  litigation  with  regard  to  his  claim,  and,  if  so,  when 
the  same  ceased,  whether  such  cessation  was  caused  by  compromise  or 
by  judicial  decree,  and  any  additional  facts  within  the  claimant's  knowl- 
edge having  a  direct  bearing  upon  his  possession  and  bona  fides  which 
he  may  desire  to  submit  in  support  of  his  claim."  56 

He  must  also  file  certificates  from  the  courts  having  jurisdiction  of 
mining  cases  in  his  judicial  district  to  the  effect  that  no  litigation  is 
pending,  or  during  the  limitation  period  has  been  pending,  affecting  the 
title  to  the  claim,  or  any  part  thereof,  other  than  such  litigation  as  has 
finally  been  decided  in  favor  of  the  claimant.57  He  must  further  sup- 
port his  narrative  of  facts  relative  to  his  possession,  occupancy,  and  im- 
provements by  corroborative  testimony  of  disinterested  persons.58 

Filing  the  Application. 

The  application  papers  having  been  prepared  as  above,  they  are  for- 
warded, with  the  filing  fee,  to  the  local  land  office.59  They  consist  of 
the  application  for  patent ;  a  copy  of  the  final  plat ;  the  approved  field 
notes ;  the  proof  of  posting  the  notice  of  application  and  the  copy  of 
the  final  plat  on  the  claim,  the  proof  being  attached  to  a  copy  of  the 
notice ;  a  copy  of  the  notice  of  application  for  patent,  to  be  posted  in 
the  land  office;  the  proof  of  applicant's  citizenship;  the  publisher's 
agreement ;  a  copy  of  the  notice  of  application  for  patent,  to  be  given 
the  application  number  and  returned  by  the  register  to  be  published  in 
the  newspaper  designated  by  him;  and  a  certified  copy  of  the  loca- 
tion certificate,  to  serve  for  a  few  days  until  the  abstract  of  title  can  be 
brought  down  to  include  the  date  of  the  filing  of  the  application  in  the 
land  office,tt  and  be  sent  to  the  land  office.60 

66  Land  Office  Regulations,  rule  75. 

»7  Land  Office  Regulations,  rule  76. 

BS  Land  Office  Regulations,  rule  77.  While  the  statute  and  the  rule  do 
not  dispense  with  the  annual  labor  requirement,  they  do  dispense  with  the 
need  of  record  evidence  of  location  and  with  the  need  of  explaining,  the  ab- 
sence of  such  evidence.  Capital  No.  5  Placer  Mining  Claim,  34  Land  Dec. 
Dep.  Int.  462. 

59  If  the  wrong  local  land  office  is  resorted  to,  steps  taken  there  are  ab- 
solutely ineffective,  as  that  office  has  no  jurisdiction.  FREDERICK  A. 
WILLIAMS,  17  Land  Dec.  Dep.  Int.  282.  Where  land  sought  to  be  patented 
lies  in  two  land  districts,  entry  will  be  allowed  only  for  the  land  in  the  dis- 
trict where  the  patent  proceedings  are  taken.  ALASKA  PLACER  CLAIM, 
34  Land  Dec.  Dep.  Int.  40.  In  such  case  an  application  for  patent  should 
be  made  in  each  district. 

tt  A  new  system  of  numbering  went  into  effect  July  1,  1908.     Methods  of 
keeping  Records  and  Accounts  Relating  to  the  Public  Lands,  37  Land  Dec. 
Dep.  Int.  45-60. 
.     so  While  one  application  for  patent  is  pending,  another  for  the  same  ground, 


356  UNCONTESTED  APPLICATION   TO   PATENT   CLAIMS.         (Ch.  1& 

Jurisdictional  Matters. 

By  the  federal  statute  it  is  made  the  duty  of  the  register,  upon  the 
filing  of  the  foregoing  first  set  of  papers,  to  "publish  a  notice  that  such 
application  has  been  made,  for  the  period  of  sixty  days,  in  a  newspaper 
to  be  by  him  designated  as  published  nearest  to  such  claim;  and  he 
shall  also  post  such  notice  in  his  office  for  the  same  period."  61  These 
two  notices  and  the  one  posted  on  the  claim  constitute  together  that 
notice  to  the  world  which  the  land  department  regards  as  essential  to 
its  jurisdiction,  and  if  any  one  of  these  notices  is  insufficient  they  are 
all  rendered  valueless.62  The  application  for  patent  prevents  any  other 
application  for  patent  for  the  ground  affected  while  the  application  is 
pending,63  except  that  a  successful  adverse  claimant  may  patent  the 
conflict  area  awarded  to  him  by  the  court.  The  patent  proceeding  is  in 
the  nature  of  a  proceeding  in  rem  and  is  binding  upon  all  the  world.64 

The  publication  of  the  notice  of  application  for  patent  must  be,  as 
we  have  seen,  for  60  days.  That  means  61  consecutive  insertions  in  a 
daily  newspaper  and  9  in  a  weekly.66  Within  the  60  days'  publication, 

or  part  thereof,  will  not  be  received.  STEMMONS  v.  HESS,  32  Land  Dec. 
Dep.  Int.  220.  But  where  the  applicant  negligently  delays  making  entry, 
and  an  adverse  relocation  is  made,  the  department  will  cancel  the  applica- 
tion. CLEVELAND  v.  EUREKA  NO.  1  GOLD  MINING  &  MILLING  CO., 
31  Land  Dec.  Dep.  Int.  69. 

ei  Rev.  St.  U.  S.  §  2325  (U.  S.  Comp.  St.  1901,  p.  1429). 

62  GROSS  v.  HUGHES,  29  Land  Dec.  Dep.  Int.  467.  Southern  Cross  Gold 
Min.    Co.    v.    Sexton,   31   Land   Dec.    Dep.    Int.    415.      If   the   notice   posted 
in  the  land  office  is  interrupted  by  the  closing  of  the  office  for  purposes  of 
the  removal  of  the  office,  the  time  to  file  adverse  is  simply  extended  the 
number   of   days  the  office  is  closed.    Tilden   v.   Intervener   Mining   Co.,   1 

'Land  Dec.  Dep.  Int.  584. 

63  Land  Office  Regulations,  rule  44.    See  note  60,  supra. 

64  HAMILTON    v.    SOUTHERN    NEV.    GOLD    &    SILVER    MIN.    CO.    (C, 
C.)  33  Fed.  562.     "The  proceedings  before  the  land  department  are  judicial, 
or  quasi  judicial,   at  least.    The  publication   is  process.     It  brings  all  ad- 
verse claimants  into  court,  and,  failing  to  assert  their  claims,  they  stand, 
at  the  expiration  of  the  notice,  in  default.    True,  no  adverse  claimant  or 
supposed  claimant  may  be  named   in  the   notice,   and   no  process   may  be 
served  personally  upon  him;    but  that  does  not  avoid  the  notice,  or  weaken 
its  sufficiency  to  bring  such  party  into  court.    This  is  not  the  only  case  known 
to  the  law  in  which  parties  not  named  in  a  notice  are  by  it  brought  into 
court  and  their  rights  adjudicated.    Unknown  heirs  are  often  thus  brought 
in  by  a  published  notice.    Tax  proceedings,  condemnations  of  rights  of  way, 
admiralty  cases,   and  many  others  present  familiar  illustrations."     Brewer, 
J.,  in  WIGHT  v.  DUBOIS  (C.  C.)  21  Fed.  693-695.     See  Kannaugh  v.  Quar- 
tette Min.  Co.,  16  Colo.  341,  27  Pac.  245;    Healey  v.  Rupp,  37  Colo.  25,  86 
Pac.  1015. 

•s  Land  Office  Regulations,  rule  45. 


§  99d)  ENTRY  AND   PATENT.  357 

ill  adverse  claims  must  be  filed,  or  they  are  barred.88  That  means  that 
:hey  must  be  filed  within  the  60  days,  computed  by  excluding  the  first 
lay  of  publication  of  the  notice  merely.67  The  time  for  filing  adverse 
:annot  be  extended,68  though  protest  may  be  made  at  any  time  prior 
:o  the  issuance  of  patent.69  Both  adverse  claims  and  protests,  and 
heir  effect  on  patent  proceedings,  are  considered  in  the  next  chapter; 
)ut  here  it  will  be  assumed  that  none  is  filed. 

SAME— THE   FINAL   SET  OF  APPLICATION  PAPERS. 

)9«.  The  second  and  final  set  of  papers  filed  by  the  applicant  for  pat- 
ent in  an  nncontested  application  includes:  (14)  Proof  by  af- 
fidavit that  the  plat  and  notice  of  application  remained  con- 
spicuously posted  daring  the  publication  period;  (15)  proof 
by  the  publisher's  affidavit  that  the  notice  was  duly  publish- 
ed; (16)  proof  by  affidavit  of  the  items  of  the  application  ex- 
penses; and  (17)  the  application  to  purchase  the  land,  accom- 
panied by  the  purchase  money. 

SAME— ENTRY  AND  PATENT. 

)9d.  Upon  the  -filing  of  the  final  application  papers  the  register  and 
receiver  of  the  local  land  office  at  once  forward  a  copy  of  (17) 
supra  to  the  chiefs  of  field  division  of  special  agents,  and  the 
register  makes  (18)  his  certificate  that  the  notice  of  applica- 
tion and  the  plat  remained  posted  in  the  land  office  during  the 
publication  period.  Upon  a  favorable  report  from  the  chiefs 
of  field  division,  the  register  makes  (19)  his  certificate  of  en- 
try. The  receiver  of  the  local  land  office  thereupon  issues 
(20)  his  duplicate  receiver's  receipts. 

The  complete  record  is  then  forwarded  to  the  Commissioner  of  the 
General  Land  Office,  and,  if  everything  is  regular,  (21)  a  pat- 
ent issues  in  due  course. 

The  publication  period  being  complete,  and  no  adverse  or  protest  be- 
ng  filed,  the  second  set  of  application  papers  is  made  up.  If  too  great 

««The  adverse  claimant,  who  has  not  filed  an  adverse  claim,  can  attack 
he  patent  only  for  reasons  which  a  court  of  equity  might  allow  to  be  urged 
igainst  a  judgment  at  law.  Golden  Reward  Min.  Co.  v.  Buxton  Min.  Co. 
C.  C.)  79  Fed.  868. 

«T  Bonesell  v.  McNider,  13  Land  Dec.  Dep.  Int.  286;  Waterhouse  v.  Scott, 
L3  Land  Dec.  Dep.  Int.  71& 

es  DAVIDSON  v.  ELIZA  GOLD  MINING  CO.,  28  Land  Dec.  Dep.  Int. 
?24;  Gross  v.  Hughes,  29  Land  Dec.  Dep.  Int.  467.  No  adverse  claim  being 
iled,  it  will  conclusively  be  presumed  that  none  exists.  Lily  Min.  Co.  v. 
lellogg,  27  Utah,  111,  74  Pac.  518 ;  Rev.  St.  U.  S.  §  2325  (U.  S.  Comp.  St. 
L901,  p.  1429). 

6»  Land  Office  Regulations,  rule  53. 


358  UNCONTESTED   APPLICATION   TO   PATENT   CLAIMS.          (Ch.  18 

delay  takes  place  in  filing  them,  entry  will  be  refused.70  This  set  con- 
sists of  the  affidavit  of  the  claimant  that  the  plat  and  the  notice  posted 
on  the  claim  remained  conspicuously  posted  thereon  during  the  60  days 
of  publication,  the  affidavit  giving  the  dates ; 71  the  publisher's  sworn 
statement  that  the  notice  was  published  for  the  statutory  period,  the 
statement  giving  the  first  and  last  days  of  such  publication ; 72  the  claim- 
ant's sworn  statement  of  all  charges  and  fees  paid  by  him  for  publi- 
cation and  surveys,  and  of  all  fees  and  money  paid  the  register  and  re- 
ceiver of  the  land  office;  and  the  application  to  purchase,  describing 
the  claim  and  excluded  areas,  and  accompanied  by  the  purchase  mon- 
ey, which  in  lode  claims  is  $5  for  each  acre  or  fractional  part  of  an 
acre. 

Entry. 

These  papers  being  received,  the  register  at  once  forwards  a  copy  of 
the  application  to  purchase  to  the  chiefs  of  field  division  of  special 
agents.  He  then  satisfies  himself  that  the  law  has  been  complied  with, 
and  makes  his  certificate  that  the  plat  and  the  notice  of  application  were 
posted  and  remained  posted  conspicuously  in  the  land  office  during  the 
period  of  publication.  If  the  chiefs  of  field  division  of  special  agents 
report  favorably,  the  register  then  makes  his  final  certificate  of  entry 
in  favor  of  the  applicant.  The  receiver  thereupon  issues  his  duplicate 
receipts  for  the  purchase  money,  filing  the  original  with  the  papers  and 
sending  the  duplicate  to  the  claimant,  and  the  claim  is  thereupon  regu- 
larly entered.  The  duplicate  receiver's  receipt  must  be  given  back  be- 
fore the  patent  is  delivered,  and  it  is  customary  to  record  it  at  once. 
The  proceedings  after  entry  being  merely  ministerial,  the  receiver's 
receipt  in  most  cases  is  the  equivalent  of  patent.73 

After  entry,  or  before  entry  if  the  chiefs  of  field  division  of  special 

70  Copper  Bullion  and  Morning   Star  Lode  Mining  Claims,  35  I/and  Dec. 
Dep.  Int.  27,  where  entry  was  denied  even  after  the  withdrawal  of  protest, 
because  more  than  two  years  elapsed  between  end  of  publication  period  and 
attempt  by  applicant  to  complete  proceedings. 

71  Land    Office    Regulations,    rule    51.     Personal    observations    at   various 
times  and  such  information  as  a  reasonably  cautious  man  would  accept  are 
sufficient  knowledge  to  justify  the  affidavit.     Bright  v.  Elkhorn  Mining  Co., 
9  Land  Dec.  Dep.  Int.  503. 

72  Land  Office  Regulations,  rule  51. 

7  s  Aurora  Hill  Con.  Min.  Co.  v.  Eighty-Five  Mining  Co.  (C.  C.)  34  Fed. 
515.  Its  possession  is  evidence  of  the  claimant's  good  faith,  where  that 
is  material.  Valcalda  v.  Silver  Peak  Mines,  86  Fed.  90,  29  C.  C.  A.  591. 
It  gives  a  vested  right  to  a  patent,  which  right  can  be  divested  only  on 
proper  notice.  REBECCA  GOLD  MIN.  CO.  v.  BRYANT,  31  Colo.  119,  71 
Pac.  1110,  102  Am.  St.  Rep.  17.  The  receiver's  receipt  is  so  far  the  equiv- 
alent of  patent  that  it  has  been  held  that  a  vendee  of  a  mining  claim  for 
which  a  receiver's  receipt  has  been  issued  to  the  vendor  cannot  refuse  the 


g  99d)  ENTRY   AND   PATENT.  35<J 

agents  report  unfavorably,  the  complete  record  is  forwarded  by  the  lo- 
cal land  officers  to  tHe  Commissioner  of  the  General  Land  Office,  who 
may  have  a  special  agent  go  upon  the  land  and  report,  and  if  everything 
is  regular  a  patent  issues  in  due  course.  If  irregularities  are  discov- 
ered, the  applicant  is  given  notice  to  correct  them.  Occasionally  the 
receiver's  receipt  is  recalled  and  the  entry  canceled.  This  may  be  done 
any  time  before  patent  issues,74  after  notice  to  the  applicant  and  oppor- 
tunity to  him  to  be  heard.75  Matters  adjudicated  by  the  final  entry  are 
as  conclusive  from  collateral  attack  as  though  patent  had  issued.76 

Names  Inserted  in  Patent. 

Where  an  applicant  conveys  away  his  interest  after  application,  the 
land  department  refuses  to  consider  the  transfer  and  issues  patent  in  the 
name  of  the  applicant,  on  the  theory  that  the  title  inures  to  the  trans- 
feree.77 If,  however,  the  land  department  has  knowledge  of  a  trans- 
feree's or  mortgagee's  conveyance  from  an  entryman,  however  that 
knowledge  is  acquired,  the  transferee  or  mortgagee  is  entitled  to  notice 
of  any  action  by  the  government  looking  to  a  cancellation  of  the  entry 
and  if  the  notice  is  not  given  the  entry  will  be  reinstated.78 

Where  an  applicant  dies  before  entry,  the  land  office,  on  proof  of  that 
fact,  will  issue  the  receiver's  receipt  to  "the  heirs  of"  the  ap'plicant,  or 
correct  it  if  issued  in  the  name  of  the  applicant.79  Where  he  dies  aft- 
er entry,  he  is  regarded  as  having  title,  and  the  patent  issues  in  his 
name.  After  the  entry  the  government  holds  the  legal  title  in  trust 
for  the  entryman,80  and  that  equitable  interest  of  the  entryman  passes 
to  his  heir. 

vendor's  deed  merely  because  the  vendor  has  not  received  his  patent.  Bash 
v.  Cascade  Min.  Co.,  29  Wash.  50,  69  Pac.  402,  70  Pac.  487. 

74  Orchard  v.  Alexander,  157  U.  S.  372,  15  Sup.  Ct.  635,  39  L.  Ed.  737. 

7  5  REBECCA  GOLD  MIN.  CO.  v.  BRYANT,  31  Colo.  119,  71  Pac.  1110,  102 
Am.  St.  Rep.  17;  Mineral  Farm  Min.  Co.  v.  Barrick,  33  Colo.  410,  80  Pac. 
1055. 

76  BROWN  v.  GURNEY,  201  U.  S.  184,  26  Sup.  Ct.  509,  50  L.  Ed.  717. 

77  Land  Office  Regulations,  rule  71;    Liddia  Lode  Mining  Claim,  33  Land 
Dec.  Dep.  Int.  127.     See  Slothower  v.  Hunter,  15  Wyo.  189,  88  Pac.  36. 

7  8  ROMANCE  LODE  MINING  CLAIM,  31  Land  Dec.  Dep.  Int.  51. 

79TRIPP  v.  DUMPHY,  28  Land  Dec.  Dep.  Int.  14. 

«o  Deffeback  v.  Hawke,  115  U.  S.  392,  6  Sup.  Ct.  95,  29  L.  Ed.  423;  Ham- 
ilton v.  Southern  Nev.  Gold  &  Silver  Min.  Co.  (C.  C.)  33  Fed.  562.  An  entry 
and  certificate  of  purchase,  while  outstanding,  are  equivalent  to  patent 
Aurora  Hill  Con.  Min.  Co.  v.  Eighty-Five  Mining  Co.  (O.  C.)  34  Fed.  515. 


SCO  UNCONTESTED   APPLICATION   TO   PATENT   CLAIMS.         (Ch.  18 


THE  PATENTING  OF  MILL  SITES. 

1OO.  Mill  sites  patented  with,  lodes  are  included  in  the  same  survey 
and  in  the  various  lode  application  papers.  The  mill  site 
must  be  carefully  described  in  the  papers,  and  a  copy  of  the 
notice  and  one  of  the  plats  must  be  posted  on  the  mill  site, 
as  well  as  upon  the  lode  claim.  Proof  by  affidavit  must  be 
furnished  of  the  nonmineral  character  of  the  ground. 

Mill  sites  patented  separately  from  lode  claims  are  patented  in  ex- 
actly the  same  way  as  lode  claims,  except  that  proof  by  af- 
fidavit must  be  furnished  of  the  nonmineral  character  of  the 
ground  and  of  the  mill  site  use  to  which  the  ground  is  being 
put. 

When  a  mill  site  patent  is  applied  for  in  connection  with  a  lode,  the 
application  may  be  at  the  time  of  the  application  for  patent  of  the  lode 
or  after  such  patent.81  Where  both  are  applied  for  at  the  same  time,  a 
survey  of  both  is  called  for  at  the  same  time,  and  a  certified  copy  of 
the  mill  site  location  certificate,  as  well  as  of  the  lode  location  certifi- 
cate, is  furnished.  The  mill  site  is  described  in  the  plat  and  field  notes 
by  the  same  survey  number  as  the  claim ;  but  the  claim  then  has  the 
letter  "A"  after  the  survey  number  and  the  mill  site  has  the  letter  "B." 
For  instance,  if  the  survey  number  is  "37,"  the  claim  is  "Sur.  Nd. 
37A,"  and  the  mill  site  "Sur.  No.  37B."  82  In  the  posted  and  published 
notices  of  the  application  for  patent,  as  much  care  must  be  taken  to 
describe  the  mill  site  as  to  describe  the  lode  claim,  the  plat  and  field 
notes  must  give  the  course  and  distance  from  a  corner  of  the  mill  site 
to  a  corner  of  the  lode  claim,  and  a  copy  of  the  plat  and  notice  of  ap- 
plication for  patent  must  be  conspicuously  posted  upon  the  mill  site, 
as  we'll  as  upon  the  lode  claim,  for  the  statutory  period.88 

Where  a  mill  site  used  in  connection  with  a  lode  for  mining  or  mill- 
ing purposes  is  sought  to  be  patented  after  the  lode  claim  has  gone 
to  patent,84  or  where  a  mill  site  claim,  independent  of  any  lode  owner- 
ship, is  sought  to  be  patented,  the  applicant  for  patent  must  proceed 
precisely  in  the  way  required  for  lode  mining  patents. 

The  purchase  price  for  mill  sites  is  the  same  per  acre  as  for  lode 

si  Eclipse  Mill  Site,  22  Land  Dec.  Dep.  Int.  496. 

82  Land  Office  Regulations,   rule  63. 

ss  id.  If  posting  on  the  mill  site  is  neglected,  republication  will  be  re- 
quired. Silver  Star  Mill  Site,  25  Land  Dec.  Dep.  Int.  165;  Peacock  Mill 
Site,  27  Land  Dec.  Dep.  Int.  373. 

s*  "It  is  generally  advisable  to  apply  for  a  mill  site  in  connection  with  a 
lode  claim,  and  in  applying  for  a  lode  patent  a  mill  site  can  be  included,  and 
surface  for  building  purposes  readily  acquired,  at  a  cost  of  $50  less  than  if 
separate  applications  are  made."  Morrison's  Mining  Rights  (13th  Ed.)  453. 


£  101)  PATENTING  OF  PLACER  CLAIMS.  361 

claims.  "In  every  case  there  must  be  satisfactory  proof  that  the  land 
claimed  as  a  mill  site  is  not  mineral  in  character,  which  proof  may, 
where  the  matter  is  unquestioned,  consist  of  the  sworn  statement  of 
two  or  more  persons  capable,  from  acquaintance  with  the  land,  to  testi- 
fy understandingly."  85  The  application  for  patent  should  also  show 
the  class  of  mill  site  claimed,  and  proof  by  the  affidavit  of  two  disinter- 
ested persons  should  support  the  statement  in  the  application  that  a 
mill  site  use  is  being  made  of  the  ground.  This  proof  should  be  fur- 
nished with  the  first  set  of  papers.  The  applicant  for  a  mill  site  patent 
must  make  his  application  in  good  faith  for  himself.8* 

THE  PATENTING  OF  PLACER  CLAIMS. 

101.  With  the  exception  that  no  survey  need  be  made  for  placers  con- 
forming to  government  survey  subdivisions,  and  that  a  spe- 
cial kind  of  descriptive  report  by  the  deputy  mineral  sur- 
veyor is  called  for  by  the  land  department,  the  proceedings  to 
obtain  a  patent  for  a  placer  claim  are  the  same  as  those  for 
a  lode  claim. 

Applications  to  patent  placers  differ  slightly  from  applications  to 
patent  lodes.  If  the  placer  claim  is  located  on  surveyed  land,  and  con- 
forms to  the  10-acre  or  larger  subdivisions  of  the  government  survey, 
no  new  survey  need  be  made ;  but  application  for  patent  may  be  made 
at  once  in  the  land  office.  In  such  case  the  proof  of  $500  worth  of  im- 
provements must  be  furnished  by  the  affidavit  of  two  or  more  disin- 
terested witnesses.87  The  application  for  patent  must  state  specifically 
what  10-acre  or  other  lots  are  sought  to  be  patented.  If  the  claim  is  on 
unsurveyed  land,  or,  being  on  surveyed  land,  does  not  exactly  conform 
to  the  surveyed  subdivisions,  an  official  survey  is  required,88  unless  in 
the  case  of  surveyed  land  the  failure  to  conform  is  due  to  excluding 
patented  land.89 

With  the  exception  just  noted,  and  with  the  further  exception  of 
the  descriptive  report  called  for  by  the  land  department,  the  proceed- 
ings to  obtain  a  patent  for  a  placer  are  the  same  as  those  to  obtain  a 
patent  for  a  lode  claim.90 

SB  Land  Office  Regulations,  rule  65. 

se  Hamburg  Min.  Co.  v.  Stephenson,  17  Nev.  449,  30  Pac.  1088. 

«7  Land  Office  Regulations,  rule  25. 

88  G.  A.  KHERN,  6  Land  Deo.  Dep.  Int.  580. 

8»  MARY  DARLING  PLACER  CLAIM,  31  Land  Dec.  Dep.  Int  64, 

•»  Land  Office  Regulations,  rules  58,  59. 


362  UNCONTESTED   APPLICATION   TO   PArENT   CLAIMS.         (Ch.  18 

The  Descriptive  Report. 

The  descriptive  report  is  called  for  by  the  following  provisions  of 
the  land  office  rules,  viz. : 

"Mineral  surveyors  shall  at  the  expense  of  the  parties  make  full  ex- 
amination of  all  placer  claims  surveyed  by  them  and  duly  note  the  facts 
as  specified  in  the  law,  stating  the  quality  and  composition  of  the  soil, 
the  kind  and  amount  of  timber  and  other  vegetation,  the  locus  and 
size  of  streams,  and  such  other  matters  as  may  appear  upon  the  sur- 
face of  the  claim.  This  examination  should  include  the  character  and 
extent  of  all  surface  and  underground  workings,  whether  placer  or 
lode,  for  mining  purposes. 

"In  addition  to  these  data,  which  the  law  requires  to  be  shown  in 
all  cases,  the  deputy  should  report  with  reference  to  the  proximity  of 
centers  of  trade  or  residence;  also  of  well-known  systems  of  lode  de- 
posits or  of  individual  lodes.  He  should  also  report  as  to  the  use  or 
adaptability  of  the  claim  for  placer  mining,  whether  water  has  been 
brought  upon  it  in  sufficient  quantity  to  mine  the  same,  or  whether  it 
can  be  procured  for  that  purpose,  and,  finally,  what  works  or  expend- 
itures have  been  made  by  the  claimant  or  his  grantors  for  the  develop- 
ment of  the  claim,  and  their  situation  and  location  with  respect  to  the 
same  as  applied  for. 

"This  examination  should  be  reported  by  the  mineral  surveyor  un- 
der oath  to  the  surveyor  general,  and  duly  corroborated,91  and  a  copy 
ot  the  same  should  be  furnished  with  the  application  for  patent  to  the 
claim,  constituting  a  part  thereof,  and  included  in  the  oath  of  the  claim- 
ant." 92 

This  descriptive  report  must  receive  the  approval  of  the  surveyor 
general,  who  thereupon  certifies  a  transcript  of  that  report,  as  well  as  a 
transcript  of  the  field  notes.  Whenever  a  survey  of  a  placer  is  required 
this  descriptive  report  must  be  obtained,  and  the  deputy  mineral  sur- 
veyor therefore  makes  it  out  without  special  instructions.  If,  however, 
no  survey  is  required,  because  the  claim  conforms  to  surveyed  sub- 
divisions, a  descriptive  report  need  not  be  made  until  required  by  the 
land  department.98 

si  This  corroboration  should  be  by  affidavit  of  one  or  more  disinterested 
persons  (see  Land  Office  Regulations,  rule  167  [i]),  who  know  the  facts,  and 
who  swear  that  they  have  read  the  descriptive  report,  and  that  it  is  true 
In  every  particular. 

92  Land  Office  Regulations,   rules  60,   167.     In   rule   167  it  Is  further  re- 
quired that  the  descriptive  report  shall  describe  "the  true  situation  of  all 
mines,  salt  licks,  salt  springs,  and  mill  sites  which  come  to  the  surveyor's 
knowledge,  or  a  report  by  him  that  none  exist  on  the  claim,  as  the  facts  may 
warrant."  , 

93  Rosina  T.  Gerbauser,  7  Land  Dec.  Dep.  Int.  390.     See  Morrison's  Min- 
ing Rights  (13th  Ed.)  459.   ' 


§  lOla)  KNOWN    LODES   WITHIN   PLACERS.  363 


SAME-KNOWN   LODES   WITHIN   PLACERS. 

lOla.  Known  lodes  in  placers  must  be  located  as  such  by  £he  appli- 
cant for  placer  patent  if  he  intends  to  claim  them  in  his  pla- 
cer application.  Known  lodes  not  claimed  by  the  applicant 
for  placer  patent  may  be  patented  by  third  parties  after  a 
departmental  inquiry  establishes  that  they  are  known  lodes. 

The  application  for  patent  must  state  that  the  claim  is  all  placer, 
and  be  corroborated  by  accompanying  proofs,94  or,  if  the  claim  contains 
some  known  lodes,  the  application  should  contain  a  description  of  them 
and  a  declaration  of  the  intention  of  the  applicant  to  claim  such  as  he 
may  want.  A  failure  to  disclose  known  lodes  in  the  application  will  not 
make  the  patent  cover  them,  nor  prevent  the  issuance  of  a  subsequent 
lode  patent; 95  for  by  the  express  provisions  of  the  statute  such  failure 
must  "be  construed  as  a  conclusive  declaration  that  the  claimant  of  the 
placer  claim  has  no  right  of  possession  of  the  vein  or  lode  claim."  9ti 

A  placer  applicant  will  not  be  allowed  to  amend  his  application,  so  as 
to  embrace  therein  veins  or  lodes  discovered  by  others  after  the  location 
of  the  placer  claim,  but  prior  to  the  application  therefor.97  After  pla- 
cer patent  the  patentee  will  not  be  allowed  to  patent  lodes  in  the  placer 
which  were  not  known  lodes.$  Where  the  placer  applicant  claims  the 
known  lodes,  he  must  locate  them  as  lodes  and  furnish  the  evidence  of 
title  usual  on  patent  applications.  Survey  is,  of  course,  required;  but 
a  survey  number  separate  from  the  placer  survey  number  seems  not  to 
be  necessary.  In  the  survey  the  known  lodes  are  designated  simply  by 
their  names.98  The  posting  of  notice  of  the  application  for  patent 
must  be  done  on  each  known  lode,  as  well  as  on  the  placer  ground. 

Where,  after  a  placer  patent,  a  third  person  wants  to  apply  to  patent 
a  lode  in  the  placer  as  a  "known"  lode,  he  must  first  get  a  departmen- 
tal inquiry  to  establish  that  the  lode  was  known  to  exist  at  the  date  of 
the  application  for  placer  patent.99  Because  "known  lodes"  are  reserv- 
ed and  excepted  from  placer  patents,  the  lode  claimant  does  not  have  to 

»*  "Where  there  is  no  known  lode  or  vein,  the  fact  must  appear  by  the 
affidavit  of  two  or  more  witnesses."  Land  Office  Regulations,  rule  26. 

»5  South  Star  Lode,  20  Land  Dec.  Dep.  Int.  204;  Cape  May  Mining  & 
Leasing  Co.  v.  Wallace,  27  Land  Dec.  Dep.  Int.  676. 

»6  Rev.  St.  U.  S.  §  2333  (U.  S.  Comp.  St.  1901,  p.  1433). 

»  T  AURORA  LODE  v.  BULGER  HILL  &  NUGGET  GULCH  PLACER 
CO.,  23  Land  Dec.  Dep.  Int.  95. 

$  Alice  Mining  Co.,  27  Land  Dec.  Dep.  Int.  661. 

»8  See  Morrison's  Mining  Rights  (13th  Ed.)  460. 

99BUTTE  &  BOSTON  MIN.  CO.,  21  Land  Dec.  Dep.  Int.  125;  Cape  May 
Mining  &  Leasing  Co.  v.  Wallace,  27  Land  Dec.  Dep.  Int.  676. 


364:  UNCONTESTED  APPLICATION    TO   PATENT   CLAIMS.          (Cll.  18 

adverse  the  placer  patent;  10°  and  because  other  than  known  lodes  pass 
by  the  placer  patent,  and  cannot  be  taken  away  from  the  patentee  by  de- 
partmental proceedings,101  the  placer  patentee  does  not  have  to  adverse 
the  "known  lode"  claimant.102  The  issue  between  the  two,  if  not  act- 
ually litigated  between  them  in  adverse  proceedings,  may  be  settled  in 
a  suit  to  quiet  title  or  in  an  ejectment  action  after  the  issuance  of  the 
lode  patent.  It  is  only  where  the  lode  patent  is  applied  for  first  that  ad- 
verse proceedings  are  absolutely  required.  If,  however,  the  lode  claim- 
ant does  not  adverse  the  placer  application,  he  may  find  that  the  land 
department  will  not  entertain  his  application,  because  he  does  not  over- 
come the  presumption  in  the  department  against  him.103  He  really 
must  undergo  two  trials,  one  in  the  department  and  one  before  the 
courts,  where  one  before  the  courts  in  adverse  proceedings  would  do. 
The  "known  lode"  claimant,  therefore,  ought  to  adverse  the  placer  ap- 
plication, and  to  get  more  than  50  feet  in  width  of  surface  ground  he 
probably  must  do  so.104 

The  lodes  claimed  in  a  placer  application  as  "known  lodes"  must  be 
paid  for  at  $5  per  acre ;  but  the  purchase  price  of  placer  ground  prop- 
er is  only  $2.50  per  acre  or  fractional  part  of  an  acre.105 

CONFLICTS  OF  LODES  AND  PLACERS  'WITH  OLDER  LOCATIONS. 

1O2.  The  area  in  conflict  between  the  claim  being  patented  and  pre- 
viously patented  claims  is  excepted  from  the  area  applied  for, 
but  otherwise  does  not  affect  the  application  for  patent,  un- 
less the  claim  sought  to  be  patented  is  cut  in  two  by  the  sen- 
ior and  no  discovery  has  been  made  in  one  part.  In  the  latter 
case  patent  will  issue  only  for  the  part  on  which  discovery 
has  been  made. 

It  sometimes  happens  that  a  lode  location  is  intersected  by  an  already 
patented  mill  site  or  placer.  In  such  case  the  department  formerly 
held  that  the  lode  claim  could  be  patented  only  to  the  point  where  the 
other  claim  intersected  it,  giving  the  applicant  his  option  which  segre- 

100  Elda  Mining  &  Milling  Oo.  v.  Mayflower  Gold  Mining  Co.,  26  Land  Dec. 
Dep.  Int.  573;    Cape  May  Mining  &  Leasing  Co.  v.  Wallace,  27  Land  Dec. 
Dep.  Int.  676,  679. 

101  Alice  Mining  Co.,  27  Land  Dec.  Dep.  Int.  661. 

102  Messrs.  Morrison  and  De  Soto  advise  him  to  do  so,  however.     Morri- 
son's Mining  Rights  (13th  Ed.)  227. 

103  The  burden  of  proof  is  on  the  lode  claimant  in  the  land  department. 
Cripple  Creek  Gold  Mining  Co.  v.  Mt.  Rosa  Mining,  Milling  &  Land  Co.,  26 
Land  Dec.  Dep.  Int.  622. 

104  A  protest  will  not  avail.     ELDA  MINING  &  MILLING  CO.  v.  MAY- 
FLOWER MINING  CO.,  26  Land  Dec.  Dep.  Int.  573. 

10  B  Rev.  St.  U.  S.  §  2333  (U.  S.  Comp.  St.  1901,  p.  1433). 


§  102)  CONFLICTS   WITH   OLDER  LOCATIONS.  365 

gated  tract  to  patent;108  but  now  patent  will  issue  for  both  tracts, 
provided  that  the  lode  or  vein  upon  which  the  location  is  based  has 
been  discovered  in  both  parts  of  the  lode  claim.107 

A  corresponding  ruling  would  doubtless  be  made  as  to  a  placer  in- 
tersected by  a  lode  or  by  a  mill  site.  An  attempted  mill  site  location, 
cut  in  two  by  a  prior  lode  or  placer  location,  would  probably  be  govern- 
ed by  the  same  ruling  also,  if  the  claimant  could  overcome  the  pre- 
sumption that  the  land  is  mineral. 

!••  The  tract  not  selected  became  In  such  case  subject  to  location  as  aban- 
doned.   BROWN  y.  GURNBY,  201  U.  S.  184,  26  Sup.  Ct  509,  50  L.  Ed.  717. 
*•*  PAUL  JONES  LODE,  31  Land  Dec.  Dep.  Int  359. 


366  ADVERSE   PROCEEDINGS  AND   PROTESTS.  (Ch.  19 


CHAPTER  XIX. 

ADVERSE  PROCEEDINGS  AND  PROTESTS  AGAINST  PATENT  APPLI- 
CATIONS. 

103.  Adverse  Claims. 

104.  Court  Proceedings  on  Adverse  Claims. 

105.  The  Relation  of  the  Land  Department  to  the  Court  Proceedings  on 

Adverse  Claims. 

106.  Protests. 

There  are  two  methods  of  opposing  a  patent  application,  namely: 
(1)  Adverse ;  and  (2)  protest.  An  adverse  claim  is  an  assertion  by  the 
adverse  claimant  of  the  ownership  of  some  part  of  the  surface  of  the 
ground  sought  to  be  patented.  A  protest,  on  the  other  hand,  will 
generally  not  lie  where  an  adverse  is  proper,1  and  is  essentially  an 
assertion  by  the  protestant  that  the  patent  applied  for  should  not  is- 
sue because  of  jurisdictional  defects.  An  adverse  claim  must  be  filed 
within  the  statutory  time,  or  it  will  not  be  considered.  A  protest 
may  be  filed  any  time  before  patent  actually  issues. 

ADVERSE   CLAIMS. 

103.  An  adverse  claim  is  one  of  title  to  part  or  all  of  the  surface 
sought  to  be  patented.  It  must  be  filed  during  the  6O-day 
period  of  publication  of  the  notice  of  application  for  patent, 
must  show  fully  the  nature,  boundaries,  and  extent  of  the 
adverse  claim,  and  must  be  followed,  within  3O  days  after  it 
is  filed,  by  the  commencement  of  the  proper  court  proceedings. 

The  federal  statute  provides  that  an  adverse  claim  must  be  filed 
during  the  60  days*  publication  of  notice  of  application  for  patent,2 
and  that  means  within  the  60  days  computed  by  excluding  the  first 
day  of  publication.8  This  time  cannot  be  extended.4  If,  for  any 

1  MUTUAL  MINING  &  MILLING  CO.  v.  CURRENCY  CO.,  27  Land  Dec. 
Dep.  Int.  191. 

2  Rev.  St.  U.  S.  §  2325  (U.  S.  Comp.  St.  1901,  p.  1429).     See  Hunt  v.  Eureka 
Gulch  Min.  Co.,  14  Colo.  451,  24  Pac.  550;    Hamilton  v.  Southern  Nev.  Gold 
&  Silver  Min.  Co.  (C.  C.)  33  Fed.  562. 

a  Bonesell  v.  McNider,  13  Land  Dec.  Dep.  Int.  286;  Waterhouse  v.  Scott, 
13  Land  Dec.  Dep.  Int.  718.  Where  the  last  day  of  the  60  falls  on  Sun- 
day or  on  a  holiday,  the  land  department  will  not  any  longer  allow  the  filing 
on  the  next  day.  HOLM  AN  v.  CENTRAL  MINES  CO.,  34  Land  Dec.  Dep. 
Int.  568. 

*  Davidson  v.  Eliza  Gold  Mining  Co.,  28  Land  Dec.  Dep.  Int.  224 ;  Gross  v. 
Hughes,  29  Land  Dec.  Dep.  Int.  467.  One  who  has  not  filed  an  adverse 


§  103)  ADVERSE   CLAIMS.  367 

reason,  republication  takes  place,  the  adverse  must,  of  course,  be  re- 
filed  during  the  new  publication.  An  adverse  claim  is  ordinarily  not 
filed  until  the  fees  for  filing  are  paid ;  but,  if  the  officers  of  the  land 
office  choose  to  become  chargeable  to  the  government  for  them  by  the 
acceptance  of  the  adverse,  the  applicant  for  patent  cannot  question  the 
validity  of  the  filing  on  the  ground  that  the  fees  have  not  been  paid.5 

The  statute  further  provides  that  the  adverse  claim  "shall  show 
the  nature,  boundaries,  and  extent  of  such  adverse  claim."  6  "The 
adverse  claim  as  filed  must  fully  set  forth  the  nature  and  extent  of 
the  interference  or  conflict,  whether  the  adverse  party  claims  as  a 
purchaser  for  valuable  consideration  or  as  a  locator.  If  the  former,  a 
certified  copy  of  the  original  location,  the  original  conveyance,  a  duly 
certified  copy  thereof,  or  an  abstract  of  title  from  the  office  of  the 
proper  recorder,  should  be  furnished,  or,  if  the  transaction  was  a 
merely  verbal  one,  he  will  narrate  the  circumstances  attending  the 
purchase,  the  date  thereof,  and  the  amount  paid,  which  facts  should  be 
supported  by  the  affidavit  of  one  or  more  witnesses,  if  any  were  pres- 
ent at  the  time ;  and  if  he  claims  as  a  locator  he  must  file  a  duly  certi- 
fied copy  of  the  location  from  the  office  of  the  proper  recorder."  7 

An  adverse  claim  must  be  filed  in  every  pending  patent  proceed- 
ing which  conflicts  with  the  ground  owned  by  the  adverse  claimant; 
but,  if  several  pieces  of  mining 'ground  owned  by  the  adverse  claimant 
are  affected  by  only  one  patent  proceeding,  one  adverse  claim  will  do 
to  specify  the  various  conflicts.  "An  adverse  claim  must  be  filed  with 
the  register  and  receiver  of  the  land  office  where  the  application  for 
patent  is  filed,  or  with  the  register  and  receiver  of  the  district  in 
which  the  land  is  situated  at  the  time  of  filing  the  adverse  claim.  It 
must  be  on  the  oath  of  the  adverse  claimant,8  or  it  may  be  verified  by 

claim  under  the  statute  cannot  intervene  in  an  adverse  suit  brought  by 
another  adverse  claimant,  even  though  he  claims  an  interest  adverse  to  both 
plaintiff  and  defendant.  MURRAY  v.  POLGLASE,  23  Mont.  401,  59  Pac. 
439.  Where  an  applicant  for  patent  allowed  his  -application  to  sleep  for 
years  and  a  relocation  for  failure  to  do  the  annual  labor  took  place,  the  re- 
locator  was  allowed  to  adverse  on  the  ground  that  the  60-day  statute  did  not 
apply  to  adverse  claims  subsequently  arising.  GILLIS  v.  DOWNEY,  85  Fed. 
483,  29  C.  C.  A.  286. 

s  BLAKE  v.  TOLL,  29  Land  Dec.  Dep.  Int.  413. 

e  Rev.  St.  U.  S.  §  2326  (U.  S.  Comp.  St.  1901,  p.  1430).  A  land  department 
rule  requiring  an  adverse  plat  to  be  made  by  a  deputy  United  States  mineral 
surveyor  from  an  actual  survey  on  the  ground  was  held  to  be  unreasonable 
and  void  in  Anchor  v.  Howe  (C.  C.)  50  Fed.  366.  Except  where  the  applicant 
and  the  adverse  claimant  both  claim  by  survey  subdivisions,  a  plat  showing 
both  claims  and  the  extent  of  conflict  must  be  filed  by  the  adverse  claimant. 
Land  Office  Regulations,  rule  82. 

7  Land  Office  Regulations,  rule  81. 

s  He  may  take  the  oath  out  of  the  district.    Amendment  by  Act  April  26, 


368  ADVERSE   PROCEEDINGS   AND   PROTESTS.  (Ch.  19 

the  oath  of  any  duly  authorized  agent  or  attorney  in  fact  of  the  adverse 
claimant  cognizant  of  the  facts  stated."  9  It  must  be  accompanied  by 
a  plat  showing  both  claims  and  the  conflict  areas,  except  in  those  cases 
where  the  applicant  and  the  adverse  claimant  both  describe  their  lo- 
cations by  legal  survey  subdivisions.10  The  rights  of  an  adverse  claim- 
ant are  limited  to  those  existing  at  the  time  of  the  filing  of  his  adverse.11 
It  is  for  the  land  office  to  determine  the  sufficiency  of  the  adverse,12 
and  an  appeal  will  properly  lie  from  the  rejection  of  it.*  Despite  the 
rejection  of  the  adverse,  and  the  consequent  appeal,  the  proper  court 
proceedings  must  begin  within  the  30  days  from  the  filing  of  the  ad- 
verse.18 Where  an  adverse  has  been  rejected  by  the  land  office,  and  no 
appeal  taken,  yet  suit  has  been  begun  within  the  30  days,  and  certificate 
thereof  filed,  the  land  department  will  suspend  action  until  the  suit  is 
terminated.14  The  suit,  however,  unlike  a  genuine  adverse  suit,  is 
not  binding  on  the  department,  though  the  department  will  give  it 
great  respect.16 

„  An  adverse  claim  may  be  amended  before  the  expiration  of  the 
publication  period;  but  after  that  period  expires  it  may  not  be  so 
amended  as  to  embrace  a  larger  conflict  area,  nor  to  set  up  a  subse- 

1882,  c.  106,  22  Stat.  49,  of  Rev.  St  U.  S.  §  2326  (U.  S.  Comp.  St.  1901,  p. 
1431). 

»  Land  Office  Regulations,  rule  78.  The  agent  or  attorney  in  fact  must  dis- 
tinctly swear  that  he  is  such,  and  accompany  his  affidavit  by  proof  thereof 
(Id.  rule  79),  and  must  make  the  «affidavit  in  the  district  where  the  claim 
is  situated  (Id.  rule  80). 

10  Land  Office  Regulations,  rule  82.    The  plat  should,  of  course,  be  pre- 
pared from  an  actual  survey  by   a  deputy   mineral  surveyor.     Id.     But   it 
need  not  be  so  prepared.     KINNEY  v.  VAN  BOKERN,  29  Land  Dec.  Dep. 
Int.  460;   Anchor  v.  Howe  (C.  C.)  50  Fed.  366.     If  the  adverse  claimant  can- 
not make  the  plat  exact,  because  a  survey  could  not  be  taken  on  account  of 
the  snow,  etc.,  his  adverse  should  allege  that  fact.    J.  S.  Wallace,  1  Land 
Dec.  Dep.  Int.   (Rev.  Ed.)  582.     The  land  department  will  not  in  .any  case 
be  technical  if  only  the  adverse  shows  with  reasonable  certainty  the  nature, 
boundaries,  and  extent  of  the  alleged  adverse  right.     McFADDEN  v.  MOUN- 
TAIN VIEW  MINING  &  MILLING  CO.,  27  Land  Dec.  Dep.  Int.  358. 

11  HEALEY  v.  RUPP,  37  Colo.  25,  86  Pac.  1015. 

12  Waterhouse  v.  Scott,  13  Land  Dec.  Dep.  Int.  718.     "A  paper  prepared  aa 
an  adverse,  when  not  properly  in  the  land  office  as  such,  is  often  received 
and  accepted  as  a  protest,  and  is  permitted  to  serve  that  purpose."    Behrends 
v.  Goldsteen,  1  Alaska,  518,  522.     For  an  instance,  see  Grand  Canyon  Ry.  Co. 
v.  Cameron,  35  Land  Dec.  Dep.  Int.  495. 

'QUIGLEY  v.  GILLETT,  101  Cal.  462,  35  Pac.  1040;  Ross  v.  Richmond 
Mining  Co.,  17  Nev.  25,  27  Pac.  1105. 

is  SCOTT  v.  MALONEY,  22  Land  Dec.  Dep.  Int.  274. 

i*  Samuel  McMaster,  2  Land  Dec.  Dep.  Int.  706.  This  is  not  true,  how- 
ever, where  the  adverse  is  not  filed  in  time.  HOLMAN  v.  CENTRAL  MON- 
TANA MINES  CO.,  34  Land  Dec.  Dep.  Int.  568. 

IB  NORTH  STAR  LODE,  28  Land  Dec.  Dep.  Int.  41,  43,  44.  So,  where 
there  has  been  a  relocation  after  the  expiration  of  the  publication  period 


§  103)  ADVERSE   CLAIMS.  369 

quently  acquired  right.16  An  adverse  claimant  does  not  waive  his 
adverse  by  obtaining  patent,  pending  the  adverse  proceedings,  for  that 
part  of  his  location  not  in  conflict  with  the  applicant's  location.17 

Who  must  Adverse. 

A  lode  claimant  must  adverse  a  conflicting  lode  application,  of 
course;  a  mill  site  claimant,  a  conflicting  mill  site  application;  and 
a  placer  claimant,  a  conflicting  placer  application.  But  the  owner  of 
an  already  patented  lode,  mill  site,  or  placer  need  not  adverse  any 
application,  because  the  statutory  provisions  relative  to  adverse  pro- 
ceedings apply  only  to  cases  where  there  are  adverse  claims  to  the 
same  unpatented  ground.18  So  the  owner  of  a  claim  which  has  passed 
the  entry  stage  in  patent  proceedings  need  not  adverse  a  subsequent 
patent  application.19  The  owner  of  a  "known  lode"  in  a  placer  need 
not,  perhaps,  adverse  a  placer.  Certainly  as  to  25  feet  on  each  side 
of  the  lode  he  need  not>  unless  the  placer  applicant  is  asking  for  a 
patent  to  the  known  lode ;  but  he  ought  to  do  so,  to  avoid  all  questions 
as  to  surface  area.20  The  owner  of  an  unpatented  placer  must  adverse 
a  "known"  lode  application  in  order  to  confine  the  lode  to  the  25  feet 
on  each  side  of  the  vein,  which  is  all  it  is  entitled  to  if  it  was  not  lo- 
cated until  after  the  placer,  just  as  he  must  do  so  to  defeat  a  lode  ap- 
plication entirely  as  to  conflicting  ground.21  In  general,  lode  claims 
must  adverse  placers  and  the  latter  must  adverse  lodes. 

and  before  entry  and  the  courts  uphold  the  relocation,  the  department  will 
cancel  the  patent  application.  Cain  v.  Addenda  Mining  Co.,  29  Land  Dec. 
Dep.  Int.  62.  The  court's  judgment  in  such  case  has  the  effect  of  a  protest. 

le  "The  notices  required  to  be  given  of  an  application  for  patent  are  in 
effect  a  summons  to  all  adverse  claimants.  The  latter  must  assert  their 
rights  by  filing  an  adverse  within  the  60  days'  publication  of  notice  of  ap- 
plication for  patent.  Unless  filed  within  that  period,  it  will  be  conclusively 
presumed  that  none  existed.  So  far,  then,  as  an  adverse  claimant  is  con- 
cerned, it  must  necessarily  follow  that  his  rights  to  the  premises  in  con- 
troversy must  be  limited  to  those  existing  at  the  time  of  filing  his  adverse. 
If  he  had  no  claim  then,  he  will  not  be  heard  to  assert  a  right  to  the  prem- 
ises in  dispute  by  virtue  of  one  brought  into  existence  thereafter;  other- 
wise, he  would  be  permitted  to  assert  title  to  the  disputed  premises  by  virtue 
of  rights  other  than  those  upon  which  his  adverse  is  based."  HEALEY  v. 
RUPP,  37  Colo.  25,  86  Pac.  1015. 

IT  MACKAY  v.  FOX,  121  Fed.  487,  57  C.  C.  A.  439. 

is  North  Star  Lode,  28  Land  Dec.  Dep.  Int  41 ;  Iron  Silver  Min.  Co.  v. 
Campbell,  135  U.  S.  286,  10  Sup.  Ct.  765,  34  L.  Ed.  155. 

is  Owers  v.  Killoran,  29  Land  Dec.  Dep.  Int.  160.  See  Murray  v.  Montana 
Lumber  &  Mfg.  Co.,  25  Mont.  14,  63  Pac.  719. 

20  See  DAHL  v.  RAUMHEIM,  132  U.  S.  260,  10  Sup.  Ot  74,  33  L.  Ed.  324. 
But  see  NOYES  v.  MANTLE,  127  U.  S.  348,  8  Sup.  Ct  1132,  32  L.  Ed.  168. 

21  CLIPPER  MIN.  CO.  v.  ELI  MINING  &  LAND  CO.,  194  U.  S.  220,  24 
Sup.  Ct.  632,  48  L.  Ed.  944. 

COST.MIN.L.— 24 


370  ADVERSE   PROCEEDINGS  AND   PROTESTS.  (Ch.  19 

W ho  May  Not  Adverse. 

With  reference  to  mill  sites  the  land  department  has  held  conflict- 
ing views,  but  the  present  view  accords  with  that  held  in  regard  to 
those  townsites  which  do  not  come  under  the  act  of  1891,  namely, 
that  the  case  is  not  one  for  adverse  at  all ;  but,  since  the  inquiry  simply 
is  as  to  the  mineral  or  nonmineral  character  of  the  land,  the  real 
controversy  must  be  determined  on  a  protest.22  This  view  has  the 
support  of  a  recent  judicial  decision  that  a  townsite  claimant  cannot 
adverse;23  but  that  decision  is  of  no  real  value  on  this  question,  be- 
cause in  that  case  the  lode  location  was  known  at  the  time  of  town 
site  entry,  and  so  did  not  pass  by  the  townsite  patent.2*  The  owner 
of  a  town  lot  in  an  unpatented  townsite  has  been  allowed  to  adverse 
a  lode  claim  application.25  Messrs.  Morrison  and  De  Soto  point  out 
that  there  have  been  frequent  instances  where  adverses  by  mill  sites 
have  been  filed  and  sustained,26  and  think  that  "it  is  advisable  to  file 
both  adverse  and  protest,  as  there  is  no  certainty  that  the  land  office 
will  maintain  its  present  position  as  to  the  right  of  a  mill  site  to  ad- 
verse a  mining  application  and  vice  versa."  2T 

A  tunnel  claimant  has  nothing  which  he  can  patent  until  he  discovers 
a  blind  vein  or  other  lode  in  his  tunnel  and  appropriates  it  in  the  way 
the  law  requires.  Hence  the  tunnel  claimant  as  such  need  not  ad- 


22  Snyder  v.  Wallace,  25  Land  Dec.  Dep.  Int.  7;  Helena,  etc.,  Co.  v.  Dailey, 
36  Land  Dec.  Dep.  Int.  144.    See  Ryan  v.  Granite  Hill  Mining  &  Development 
Co.,  29  Land  Dec.  Dep.  Int.  522 ;  Powell  v.  Ferguson,  23  Land  Dec.  Dep.  Int. 
173.    But  see  Butte  City  Smoke  House  Lode  Cases,  6  Mont.  397,  12  Pac.  858. 
The  land  department  would  confine  adverse  to  conflicts  between  mining  claims 
merely.     Grand  Canyon  R.  Co.  v.  Cameron,  35  Land  Dec.  Dep.  Int.  495. 

23  WRIGHT  v.  TOWN  OF  HARTVILLE,  13  Wyo.  497,  81  Pac.  649,  82  Pac. 
450.     Compare  Davidson  v.  Fraser,  36  Colo.  1,  84  Pac.  695,  4  L.  R.  A.  (N.  S.) 
1126.     But  see  Hamilton  v.  Southern  Nevada  Gold  &  Silver  Min.  Co.  (C.  C.) 
33  Fed.  562. 

24  See  Lalande  v.  Townsite  of  Saltese,  32  Land  Dec.  Dep.  Int.  211. 

2  s  YOUNG  v.  GOLSTEEN  (D.  C.)  97  Fed.  303;  BONNER  v.  MEIKLE 
(C.  O.)  82  Fed.  697.  But  see  WRIGHT  v.  TOWN  OF  HARTVILLE,  13 
Wyo.  497,  81  Pac.  649,  82  Pac.  450;  Behrends  v.  Goldsteen,  1  Alaska,  518. 
Compare  Nome-Sinook  Co.  v.  Simpson,  1  Alaska,  578. 

26  Morrison's  Mining  Rights  (13th  Ed.)  477,  citing  Shafer  v.  Constans,  3 
Mont.  369,  Durgan  v.  Redding  (C.  C.)  103  Fed.  914,  and  Cleary  v.  Skiffich, 
28  Colo.  362,  65  Pac.  59,  89  Am.  St.  Rep.  207. 

27  Morrison's  Mining  Rights  (13th  Ed.)  478.     Of  course,  the  recent  decision 
of  Helena,  etc.,  Co.  v.  Dailey,  36  Land  Dec.  Dep.  Int.  144,  makes  it  more  cer- 
tain than  it  was  when  they  wrote,  but  whether  it  is  yet  absolutely  certain, 
query.     Where  a  lode  claimant  adverses  a  mill  site,  he  must  show  that  the 
land  contains  minerals  which  can  be  extracted  at  a  profit.    CLEARY  v.  SKIF- 
FICH, 28  Colo.  362,  65  Pac.  59,  89  Am.  St.  Rep.  207. 


§  103)  ADVERSE   CLAIMS.  371 

verse,28  and  probably  may  not  do  so;29  but  as  the  owner  of  lode 
claims  already  acquired  through  tunnel  discovery  and  appropriation 
he  must  adverse.*  Blind  veins  yet  to  be  discovered  by  him  in  his  tun- 
nel are  protected  from  appropriation  by  others  and  from  all  necessity 
of  adverse  on  his  part  by  the  terms  of  the  tunnel  site  statute  as  in- 
terpreted by  the  United  States  Supreme  Court.30 

Where  two  adjoining  locations  divide  between  them  the  width  of 
a  broad  vein,  one  may  not  adverse  the  other  to  determine  extralateral 
rights,  because  an  adverse  must  relate  to  the  surface  ground  sought 
to  be  patented.  Certainly,  in  the  absence  of  a  record  of  an  adverse 
suit,  there  is  no  presumption  that  subterranean  rights  under  lode  min- 
ing locations  were  considered  and  determined  in  such  suit.31 

By  a  rule  of  the  land  office,  based  by  the  department  expressly  on 
a  United  States  Supreme  Court  decision,32  it  is  declared  that  a  co- 
owner,  whose  co-tenants  have  excluded  him  from  an  application  for 
patent,  does  not  have  an  adverse  claim,  but  may  protest  the  applica- 
tion.33 It  is  held,  however,  that,  if  the  co-owner  does  attempt  an  ad- 
verse, the  land  department  will  stay  proceedings  pending  the  deter- 
mination of  the  judicial  proceedings ; 34  and  since  the  case  of  Turner 
v.  Sawyer35  does  not  deny  the  right  of  the  co-owner  to  adverse,  but 
simply  makes  the  other  owners  .hold  his  share  of  the  legal  title  in  trust 
for  him,  the  better  course  would  seem  to  be  to  adverse.36 

What  is  said  above  as  to  a  co-owner  would  seem  to  apply,  also,  to 

28CREEDB  &  C.  C.  MIN.  &  MILL.  CO.  v.  UINTA  TUNNEL  MIN.  & 
TRANSP.  CO.,  196  U.  S.  337,  25  Sup.  Ct.  266,  49  L.  Ed.  501.  But  see  Back 
v.  Sierra  Nevada  Consol.  Min.  Co.,  2  Idaho,  420,  17  Pac.  83.  Compare  Hope 
Min.  Co.  of  St.  Louis  v.  Brown,  11  Mont.  370,  28  Pac.  732. 

2  »  Id. 

*This  is  true  where  he  makes  a  surface  location ;  but  where  he  claims  the 
blind  vein  without  doing  so,  query  whether  he  has  to  adverse? 

so  ENTERPRISE  MIN.  CO.  v.  RICO-ASPEN  CONSOL.  MIN.  CO.,  167  U. 
S.  108,  17  Sup.  Ct.  762,  42  L.  Ed.  96 ;  CREEDE  &  C.  C.  MIN.  &  MILL.  CO. 
v.  UINTA  TUNNEL  MIN.  &  TRANSP.  CO.,  196  U.  S.  337,  25  Sup.  Ct  266,  49 
L.  Ed.  501. 

si  LAWSON  v.  UNITED  STATES  MIN.  CO.,  207  U.  S.  1,  28  Sup.  Ct.  15, 
52  L.  Ed.  65.  See  New  York  Hill  Co.  v.  Rocky  Bar  Co.,  6  Land  Dec.  Dep. 
Int.  318. 

32  TURNER  v.  SAWYER,  150  U.  S.  578,  14  Sup.  Ct.  192,  37  L.  Ed.  1189. 
See  Stevens  v.  Grand  Central  Min.  Co.,  133  Fed.  28,  67  C.  C.  A.  284. 

sa  Land  Office  Regulations,  rule  53. 

3*  THOMAS  v.  ELLING,  25  Land  Dec.  Dep.  Int.  495;  Id.,  26  Land  Dec. 
Dep.  Int.  220;  Coleman  v.  Homestake  Min.  Co.,  30  Land  Dec.  Dep.  Int.  364. 

35  150  U.  S.  578,  14  Sup.  Ct.  192,  37  L.  Ed.  1189. 

so  See  Davidson  v.  Fraser,  36  Colo.  1,  84  Pac.  695,  4  L.  R.  A.  (N.  S.)  1126; 
Malaby  v.  Rice,  15  Colo.  App.  364,  62  Pac.  228.  Compare  Hamilton  v.  South- 
ern Nev.  Gold  &  Silver  Min.  Co.  (C.  C.)  33  Fed.  502.  A  co-owner  who  IMS 
been  omitted  from  the  application  for  patent,  and  who  pending  the  applica- 
tion attempts  to  forfeit  the  interest  of  the  applicant  co-owner  for  failure  to 


372  ADVERSE   PROCEEDINGS  AND   PROTESTS.  (Ch.   10 

the  mortgagee  or  judgment  lien  holder  claiming  under  him,  or  the 
grantee  claiming  from  him.37  It  has  also  been  held  that  an  adverse 
suit  will  lie  against  an  applicant  who  is  seeking  to  patent  the  claim 
he  relocated  after  fraudulently  failing  to  do  the  assessment  work 
he  was  employed  to  do.38 

One  who  merely  has  an  easement  over  a  mining  claim  by  virtue 
of  the  federal  statutes  cannot  adverse.39  This  applies  to  an  ease- 
ment for  a  railroad  right  of  way.40  So  one  who  has  no  surface  con- 
flict, but  simply  claims  extralateral  rights  under  the  ground  sought 
to  be  patented,  cannot  adverse.41  So,  of  course,  one  who,  after  the 
expiration  of. the  publication  period,  relocates  for  failure  of  applicant 
to  do  the  annual  labor,  cannot  adverse,  but  must  resort  to  protest.42 

So  a  mortgagee  of  the  applicant  for  patent  may  not  adverse  the 
application  for  patent,  because  he  is  protected  by  the  statutory  provi- 
sion that  "nothing  in  this  chapter  shall  be  deemed  to  impair  any  lien 
which  may  have  attached  to  any  mining  claim  or  property  thereto 
attached  prior  to  the  issuance  of  a  patent."  48  The  same  is  true  of 
judgment  creditors.44 

Who  may  Adverse,  but  Need  Not. 

Despite  the  land  department  rule  to  the  contrary,  it  is  believed  that  a 
co-owner  excluded  from  the  patent  application  and  those  in  privity 
of  title  with  him  may  adverse,  though  they  need  not  do  so.45  Where 
an  applicant  for  patent  for  a  placer  does  not  ask  to  patent  the  known 
lodes  within  it,  the  owner  of  the  known  lodes  probably  need  not  ad- 
verse ;  but  he  ought  to  do  so.46  It  has  been  held  that  a  known  min- 
ing claim  included  in  a  townsite  need  not  adverse  the  townsite.47 

perform  the  annual  labor,  cannot  thereby  acquire  any  right  In  himself  to 
make  entry  under  the  application.  Surprise  Fraction  and  Other  Lode  Claims, 
32  Land  Dec.  Dep.  Int.  93. 

37  As  to  grantees,  see  Suessenbach  v.  First  Nat.  Bank,  5  Dak.  477,  41  N- 
W.  662. 

a  s  Argentine  Min.  Co.  v.  Benedict,  18  Utah,  183,  55  Pac.  559. 

s »  Rockwell  v.  Graham,  9  Colo.  36,  10  Pac.  284. 

*o  Grand  Canyon  R.  Co.  v.  Cameron,  35  Land  Dec.  Dep.  Int.  495. 

41  New  York  Hill  Co.  v.  Rocky  Bar  Co.,  6  Land  Dec.  Dep.  Int.  318.     See 
Lawson  v.  United  States  Min.  Co.,  207  U.  S.  1,  28  Sup.  Ct.  15,  52  L.  Ed.  65. 

42  Cleveland  v.  Eureka  No.  1  Gold  Mining  &  Milling  Co.,  31  Land  Dec.  Dep. 
Int.  69;    Gillis  v.  Downey,  85  Fed.  483,  29  C.  C.  A.  286. 

43  Rev.  St.  U.  S.  §  2332  (U.  S.  Comp.  St.  1901,  p.  1433). 

44  Butte  Hardware  Co.  v.  Frank,  25  Mont.  344,  65  Pac.  1. 

45  Butte  Hardware  Co.  v.  Cobban,  13  Mont.  351,  34  Pac.  24;  Davidson  v. 
Fraser,  36  Colo.  1,  84  Pac.  695,  4  L.  R,  A.  (N.  S.)  1126.     But  see  Malaby  v. 
Rice,  15  Colo.  App.  364,  62  Pac.  228.    See  note  36,  supra. 

46  See  Dahl  v.  Raunheim,  132  U.  S.  260,  10  Sup.  Ct.  74,  33  L.  Ed.  324.     But 
see  Noyes  v.  Mantle,  127  U.  S.  348,  8  Sup.  Ct.  1132,  32  L.  Ed.  168.     See  note 
20,  supra. 

*T  Silver  Bow  M.  &  M.  Co.  v.  Clark,  5  Mont.  378,  5  Pac.  570 ;    Talbott  v. 


§  103)  ADVERSE   CLAIMS.  373 

By  the  express  provisions  of  the  federal  statute  no  locations  made 
prior  to  May  10,  1872,  need  adverse  any  location  made  under  the  act 
of  1872.  *8  An  applicant  for  patent  need  not  adverse  a  subsequent  ap- 
plication made  while  his  application  is  pending.49  Whether  a  prior 
patentee  may  adverse  is  uncertain,  but  it  is  clear  that  he  need  not.50 

The  fact  that  the  senior  locator  has  agreed  to  purchase  the  junior 
claim  if  a  patent  is  obtained  therefor  has  been  held  not  to  deprive  the 
senior  locator  of  the  right  to  contest  the  allowance  of  a  patent  to  the 
junior  claim  for  conflicting  area.51 

A  lien  claimant  need  not  adverse  the  application  to  patent  the  claim 
to  which  the  lien  attaches.52 

Effect  of  Failure  to  Adverse. 

Where  an  adverse  claim  is  required,  but  is  not  interposed,  the  failure 
to  interpose  it  bars  it,  except  where  protest  is  proper.53  It  may  not  be 
interposed,  however,  because  of  an  agreement  not  to  adverse.  Such 
an  agreement  is  not  against  public  policy.f 

King,  6  Mont.  76,  9  Pac.  434;  Butte  City  Smoke  House  Lode' Cases,  6  Mont. 
397,  12  Pac.  858. 

"  Rev.  St.  U.  S.  §  2324  (U.  S.  Comp.  St.  1901,  p.  1426) ;  Eclipse  Gold  & 
Silver  Min.  Co.  v.  Spring,  59  Cal.  304;  Blake  v.  Butte  Silver  Min.  Go.,  2 
Utah,  54.  "Locations  iriade  prior  to  1872  have,  for  the  most  part,  either 
been  patented,  or,  if  not  abandoned,  been  readjusted  to  conform  to  existing 
laws.  The  question  is  relatively  unimportant."  2  Lindley  on  Mines  (2d  Ed.) 
I  726. 

49  STEEL  v.  GOLD  LEAD  M.  CO.,  18  Nev.  80,  1  Pac.  448;  Owers  v.  Kil- 
loran,  29  Land  Dec.  Dep.  Int.  160. 

BO  North  Star  Lode,  28  Land  Dec.  Dep.  Int.  41 ;  IRON  SILVER  MIN.  CO. 
v.  CAMPBELL,  135  U.  S.  286,  10  Sup.  Ct.  765,  34  L.  Ed.  155;  Mantle  v. 
Noyes,  5  Mont.  274,  5  Pac.  856. 

61  Griffin  v.  American  Gold  Min.  Co.,  114  Fed.  887,  52  C.  0.  A,  507. 

62  Butte  Hardware  Co.  v.  Frank,  25  Mont.  344,  65  Pac.  1. 

63  Rev.  St.  U.   S.  §  2325  (U.  S.  Comp.  St.  1901,  p.  1429) ;    Richmond  Min. 
Co.  of  Nevada  v.  Eureka  Consolidated  Min.  Co.,  103  U.  S.  839,  26  L.  Ed.  557 ; 
Wight  v.  Dubois  (C.  C.)  21  Fed.  693 ;    Lily  Mining  Co.  v.  Kellogg,  27  Utah, 
111,  74  Pac.  518;   Jefferson  Min.  Co.  v.  Anchorea  Leland  Min.  &  Mill.  Oo.,  32 
Colo.  176,  75  Pac.  1070,  64  L   R.  A.  925 ;    Nesbitt  v.  De  Lamar's  Nevada  Gold 
Min.  Co.,  24  Nev.  273,  52  Pac.  609,  53  Pac.  178,  77  Am.  St.  Rep.  807. 

t  St.  Louis  Min.  &  Mill  Co.  v.  Montana  Min.  Co.,  171  U.  S.  650,  19  Sup. 
Ct.  61,  43  L.  Ed.  320.  Of  Ducie  v.  Ford,  138  U.  S.  587,  11  Sup.  Ct.  417,  34  L. 
Ed.  1091,  where  the  court  refused  to  enforce  a  trust  under  such  a  contract 
because  the  contract  was  not  in  writing,  and  so  did  not  comply  with  the  Stat- 
ute of  Frauds,  Messrs.  Morrison  and  De  Soto  say:  "The  decision,  however, 
is  largely  based  on  asserted  defects  in  the  pleadings,  and  can  hardly  be  con- 
sidered as  holding  that  so  gross  an  instance  of  wrong  would  be  in  all  cases 
shielded  by  that  statute,"  Morrison's  Mining  Rights  (13th  Ed.)  495. 


374  ADVERSE   PROCEEDINGS   AND   PROTESTS.  (Ch. 


30TJRT  PROCEEDINGS   ON  ADVERSE  CLAIMS. 

1O4.  The  court  proceeding  is,  according  as  the  situation  calls  for  one 
or  the  other,  an  action  in  ejectment  or  a  suit  in  equity.  If 
it  is  an  action  in  ejectment,  there  is  a  right  to  a  jury  trial. 
If  it  is  a  suit  in  equity,  there  is  in  most  jurisdictions  no  such 
right.  The  adverse  claimant  is  plaintiff  in  the  proceedings, 
and  the  particularity  of  allegations  required  in  the  pleadings 
varies  in  the  different  jurisdictions.  The  trial  is  much  like 
the  ordinary  trial  where  the  ownership  of  real  property  is 
litigated;  but  the  citizenship  of  the  parties  is  involved,  and 
judgment  may  be  entered  that  neither  party  is  entitled  to  the 
conflict  area. 

The  federal  statutes  make  it  the  duty  of  the  adverse  claimant,  "with- 
in thirty  days  after  riling  his  claim,  to  commence  proceedings  in  a 
court  of  competent  jurisdiction,  to  determine  the  question  of  the 
rights  of  possession,  and  to  prosecute  the  same  with  reasonable  dili- 
gence to  final  judgment ;  and  a  failure  to  do  so  shall  be  a  waiver  of  his 
adverse  claim."  54  The  purpose  of  an  adverse  suit  is  to  determine  for 
the  information  of  the  officers  of  the  land  department  which,  if  either, 
of  the  parties  has  the  possessory  title  to  the  premises  in  dispute.55 
The  question  whether  the  land  is  mineral  or  nonmineral  is  ordinarily 
not  to  be  litigated  in  such  suit,  but  is  for  the  land  department  to  de- 
termine.56 

By  a  court  of  competent  jurisdiction  is  not  meant  a  United  States 
court,  unless  such  court  would  have  jurisdiction  for  reasons  other 
than  the  nature  of  the  property  involved.  A  suit  brought  in  support 
of  an  adverse  claim  is  not  necessarily  a  suit  arising  under  the  laws  of 
the  United  States  in  such  a  sense  as  to  confer  jurisdiction  on  a  federal 

B*  Rev.  St.  U.  S.  §  2326  (U.  S.  Comr).  St.  1901,  p.  1430).  The  local  land  of- 
ficers are  required  to  give  notice  to  both  parties  of  the  filing  of  the  adverse 
and  of  the  requirement  about  court  proceedings.  Land  Office  Regulations, 
rule  83. 

55  Healey  v.  Rupp,  37  Colo.  25,  86  Pac.  1015.     A  decree  adjudging  that  thft 
defendant  is  entitled  to  purchase  a  claim  from  the  United  States  and  receive 
a  patent  therefor  is  in  excess  of  the  jurisdiction  of  the  state  court.     Grti- 
well  v.  Rocca,  141  Cal.  417,  74  Pac.  1028.    The  court  has  no  right  to  deter- 
mine whether  the  $500  expenditure  in  labor  or  improvements  required  for 
patent  has  been  made.     Wilson  v.  Freeman,  29  Mont.  470,  75  Pac.  84,  68  L. 
R.   A.  833;     Stolp  v.   Treasury   Gold  Min.   Co.,  38  Wash.   619,   80  Pac.  817. 
Nor  to  determine  whether  the  land  is  mineral   or  nonmineral.     Wright  v. 
Town  of  Hartville,   13   Wyo.  497,  81  Pac.   649,   82   Pac.  450;    Behrends  v. 
Goldsteen,  1  Alaska,  518. 

56  Wright  v.  Town  of  Hartville,   13  Wyo.  497,  81  Pac.  649,  82  Pac.  4oO ; 
LE  FEVRE  v.  AMONSON,  11  Idaho,  45,  81  Pac.  71;   Behrends  v.  Goldsteen, 
1  Alaska,  518. 


§  104)  COURT   PROCEEDINGS   ON   ADVERSE   CLAIMS.  375 

court  regardless  of  the  citizenship  of  the  parties,  "but  may  present 
simply  a  question  of  fact  as  to  the  time  of  the  discovery  of  mineral,  the 
location  of  the  claim  on  the  ground,  or  a  determination  of  the  meaning 
and  effect  of  certain  local  rules  and  customs  prescribed  by  the  miners 
of  the  district  or  the  effect  of  state  statutes."  5T 

Congress  meant  to  have  the  adverse  claimant  bring  suit  in  any  court 
having  jurisdiction  to  determine,  as  between  himself  and  the  applicant 
for  patent,  the  question  of  the  right  of  possession.58  It  is  certainly 
doubtful  whether  an  adverse  suit  could  be  brought  in  a  federal  court 
for  any  other  reason  than  the  diversity  of  citizenship.59  The  ordinary 
place  to  bring  such  suits  is  in  state  courts  of  general  jurisdiction,  and 
those  courts  have  full  jurisdiction,  subject  only  to  removal  of  the 
cause  to  the  federal  courts  in  cases  where  the  latter  have  jurisdiction. 

The  Nature  of  the  Court  Proceedings. 

While  the  word  "suit"  was  used  above  in  speaking  of  the  court 
proceedings,  it  was  without  any  intention  of  prejudicing  the  ques- 
tion of  whether  the  court  proceedings  on  an  adverse  claim  are  actions 
at  law  or  suits  in  equity.  The  determination  of  that  question  settles  the 
matter  of  the  right  to  jury  trial.60 

The v.  Supreme  Court  of  the  United  States  has  taken  the  sensible 
ground  that  where  the  plaintiff  is  out  of  possession  the  proper  action 
is  ejectment,  but  that  where  the  plaintiff  is  in  possession  the  proper 
suit  is  one  in  equity  to  quiet  title.61  Under  this  view  a  jury  trial 
could  be  demanded  of  right  in  ejectment,  but  need  not  be  granted  in 
the  suit  to  quiet  title.62  While  the  state  statute  may  permit  a  person 

5r  SHO SHONE  MINING  CO.  v.  RUTTER,  177  U  S.  505,  20  Sup.  Ct.  726, 
44  L.  Ed.  864.  See  Blackburn  v.  Portland  Gold  Min.  Co.,  175  U.  S.  571,  20 
Sup.  Ct.  222,  44  L.  Ed.  276;  Mountain  View  Min.  &  Mill.  Co.  v.  McFadden, 
180  U.  S.  533,  21  Sup.  Ct.  488,  45  L.  Ed.  656. 

68  Blackburn  v.  Portland  Gold  Min.  Co.,  175  U.  S.  571,  20  Sup.  Ct.  222, 
44  L.  Ed.  276. 

e»  See  2  Lindley  on  Mines  (2d  Ed.)  §  747. 

eo  Where  the  suit  is  in  equity,  there  need  be  no  jury  (PEREGO  v.  DODGE, 
163  U.  S.  160,  16  Sup.  Ct.  971,  41  L.  Ed.  113;  Mares  v.  Dillon,  30  Mont.  117, 
75  Pac.  963),  unless,  of  course,  the  state  statutes  or  Constitutions  give  the 
right  to  one. 

61PEREGO  v.  DODGE,  163  U.  S.  160,  16  Sup.  Ct.  971,  41  L.  Ed.  113; 
Allen  v.  Myers,  1  Alaska,  114.  See  Davidson  v.  Calkins  (C.  C.)  92  Fed.  230; 
Young  v  Golsteen  (D.  C.)  97  Fed.  303;  Wolverton  v.  Nichols,  5  Mont.  89, 
2  Pac.  308;  Milligan  v.  Savery,  6  Mont.  129,  9  Pac.  894.  For  a  case  where 
living  in  a  tent  and  working  a  shaft  on  one  of  several  claims  for  the  bene- 
fit of  all  was  held  to  constitute  actual  possession  of  all  the  claims,  see  Lange 
v.  Robinson,  148  Fed.  799,  79  C.  C.  A.  1. 

62  PEREGO  v.  DODGE,  supra.  In  so  holding  the  court  declared  that 
the  amendment  of  1881  to  Rev.  St.  U.  S.  §  2326  (U.  S.  Comp.  St.  1901,  p. 


37G  ADVERSE   PROCEEDINGS   AND   PROTESTS.  (Ch.  19 

out  of  possession  to  bring  a  suit  in  the  nature  of  a  suit  to  quiet  title, 
the  fact  that  the  plaintiff  is  out  of  possession  would  seem  to  make 
the  action  so  far  the  equivalent  of  ejectment  as  to  give  either  party 
the  right  to  demand  a  jury  trial.63 

In  a  jurisdiction  authorizing  such  a  verdict,  the  right  to  a  jury  trial 
is  satisfied  by  a  jury  which  renders  a  three- fourths  verdict.6* 

Time  in  Which  to  Commence  Court  Proceedings. 

By  the  federal  statute  the  court  proceedings  must  be  commenced 
within  30  days  after  the  filing  of  the  adverse  claim,65  and  the  land 
department  construes  this  to  mean  within  30  days  after  the  adverse 
claim  is  filed,  even  though  it  is  rejected  and  an  appeal  from  the  rejec- 
tion has  to  be  taken.66  The  statute  is  mandatory.  "There  is  no  ex- 
ception as  to  the  claimant  who  may  be  beyond  the  seas,  or  under  dis- 
ability of  any  kind,  or  who  may  fail  to  act  from  inadvertence  or  oth- 
er cause.  The  suit  must  be  brought  within  the  time  specified,  and  it 
must  be  prosecuted  with  reasonable  diligence.  The  act  says :  'And 
a  failure  so  to  do  shall  be  a  waiver  of  this  adverse  claim/  This  act 
admits  of  no  addition  or  modification  from  the  statute  of  the  state; 
and  where,  as  in  this  instance,  the  claimant  commences  suit  in  due  time 
and  is  cast  in  his  suit,  he  is  without  remedy,  except  such  as  may  be  ob- 
tained in  the  same  suit  on  appeal  or  writ  of  error."  67 

While  the  statute  is  mandatory,1  the  objection  that  the  action  was 
not  brought  within  30  days  after  the  filing  of  the  adverse  claim  can- 
not be  raised  by  motion  for  judgment  or  by  a  motion  to  strike  the 
complaint  from  the  files,  but  may  be  presented  by  answer  or  special 
plea.68  This  includes  demurrer.69  Moreover,  when  the  defendant  has 
demurred,  answered,  and  gone  to  trial,  it  is  too  late  to  raise  the  ob- 

1430),  that  if  neither  party  established  title  "the  jury  shall  so  find,"  does 
not  require  a  jury  in  the  suit  to  quiet  title.  See  Mares  v.  Dillon,  30  Mont. 
117,  75  Pac.  963 ;  Rutter  v.  Shoshone  Min.  Co.  (C.  C.)  75  Fed.  37. 

es  Donahue  v.  Meister,  88  Cal.  121,  25  Pac.  1096,  22  Am.  St.  Rep.  283; 
Landregan  v.  Peppin,  94  Cal.  465,  29  Pac.  771.  But  see  Mares  v.  Dillon,  30 
Mont.  117,  75  Pac.  963. 

64  PROVIDENCE  GOLD  MIN.  CO.  v.  BURKE,  6  Ariz.  323,  57  Pac.  641. 

es  Rev   St  U.  S.  §  2326  (U.  b.  Comp.  St.  1901,  p.  1430). 

66  Scott  v.  Maloney,  22  Land  Dec.  Dep.  Int.  274;    DENISS  v.  SINNOTT, 
35  Land  Dec.  Dep.  Int.  304. 

67  STEVES  v.  CARSON  (O.  C.)  42  Fed.  821.     A  suit  begun  on  the  31st  day 
is  too  late.    Madison  Placer  Claim,  35  Land  Dec.  Dep.  Int.  551.     It  will  not 
do  to  try  to  avail  one's  self  of  a  suit  started  before  the  publication  period. 
Selma  Oil  Claim,  33  Land  Dec.  Dep.  Int.  187. 

es  PROVIDENCE  GOLD  MIN.  CO.  v.  MARKS,  7  Ariz.  74,  60  Pac.  938. 
69  STEVES  v.  CARSON  (C.  C.)  42  Fed.  821;   Hopkins  v.  Butte  Copper  Co., 
29  Mont.  390,  74  Pac.  1081. 


§  104)  COURT   PROCEEDINGS   ON   ADVERSE    CLAIMS.  377 

j  action  that  the  adverse  or  the  complaint  was  not  filed  within  the  time 
required  by  the  statute.70 

The  time  when  the  court  proceeding  will  be  deemed  commenced  will 
depend  upon  the  rule  governing  in  the  court  where  it  is  started;71 
and  it  may  be  so  commenced  although  the  adverse  claim  is  set  up  by 
supplemental  complaint  in  an  adverse  suit  already  begun  on  a  differ- 
ent adverse  claim.72 

The  Parties  and  Pleadings. 

The  adverse  claimant  brings  the  suit  against  the  applicant  for  pat- 
ent, even  though  the  latter  has  sold  his  interest  before  the  suit  is 
brought.73  Probably  he  would  be  allowed  to  join  as  a  defendant  with 
the  applicant  for  patent  the  applicant's  grantee.  Where  several  adverse 
claimants  conveyed  to  one  of  their  number,  it  was  held  that  the  latter 
could  bring  the  adverse  proceeding  without  joining  the  grantor  adverse 
claimants.74  Only  those  who  have  filed  adverse  claims  can  be  made 
parties  or  intervene.75 

With  reference  to  the  pleadings  it  may  be  stated  that  the  particular- 
ity of  allegation  required  varies  in  the  different  jurisdictions.  The 
plaintiff  out  of  abundant  caution  should  aver  his  citizenship  or  declara- 
tion of  intention  to  become  a  citizen,76  should  name  and  describe  the 

TO  RICHMOND  MIN.  CO.  v.  ROSE,  114  U.  S.  576,  5  Sup.  Ct.  1055,  29  L. 
Ed.  273;  Pennsylvania  Min.  Co.  v.  Bales,  18  Colo.  App.  108,  70  Pac.  444; 
Hain  v.  Mattes,  34  Colo.  345,  83  Pac.  127. 

71  HARRIS  v.  HELENA  GOLD  MIN.  CO.  (Nev.)  92  Pac.  1.     See  Mars  v. 
Oro  Fino  Min.  Co.,  7  S.  D.  605,  65  N.  W.  19;    Rose  v.  Richmond  Min.  Co., 
17  Nev.  25,  27  Pac.  1105. 

72  Marshall  Silver  Min.  Co.  v.  Kirtley,  12  Colo.  410,  21  Pac.  492;    Jones  v. 
Pacific  Dredging  Co.,  9  Idaho,  186,  72  Pac.  956. 

73  BLACKBURN  v.  PORTLAND  GOLD  MIN.  CO.,  175  U.  S.  571,  20  Sup 
Ct.  222,  44  L.  Ed.  276.     Compare  Mackay  v.  Fox,  121  Fed.  487,  57  C.  C.  A. 
439. 

7*  WILLITT  v.  BAKER  (C.  C.)  133  Fed.  937. 

7  R  Mont  Blanc  Consol.  Gravel  Min.  Co.  v.  Debour,  61  Cal.  364;  Murray 
v.  Polglase,  23  Mont.  401,  59  Pac.  439. 

76  See  SHERLOCK  v.  LEIGHTON,  9  Wyo.  297,  63  Pac.  580,  934 ;  ALLYN 
v.  SCHULTZ,  5  Ariz.  152,  48  Pac.  960;  Lee  Doon  v  Tesh,  68  Cal.  43,  6 
Pac.  97,  8  Pac.  621;  Thomas  v.  Ohisholm,  13  Colo.  105,  21  Pac.  1019;  Keeler 
v.  Trueman,  15  Colo.  143,  25  Pac.  311;  Rosenthal  v.  Ives,  2  Idaho,  265, 
12  Pac.  904 ;  Matlock  v.  Stone,  77  Ark.  195,  91  S.  W.  553.  But  see  ALTOONA 
QUICKSILVER  MIN.  CO.  v.  INTEGRAL  QUICKSILVER  MIN.  CO.,  114 
Cal.  100,  45  Pac.  1047;  McCarthy  v.  Speed,  11  S.  D.  362,  27  N.  W.  590. 
While  the  absence  of  proof  of  citizenship  justifies  the  court  in  refusing  a 
judgment  to  one  party  to  an  adverse  suit,  the  other  party  does  not  thereby 
become  entitled  to  judgment.  SHERLOCK  v.  LEIGHTON,  supra ;  SCHULTZ 
v.  ALLYN,  supra;  Girard  v.  Carson,  22  Colo.  345,  44  Pac.  508. 


3TS  ADVERSE   PROCEEDINGS   AND   PROTESTS.  (Cll.  19 

mining  claim  which  he  asserts  to  be  his  and  the  conflict  area,77  should 
assert  the  defendant's  wrongful  claim  to  or  possession  of  the  con- 
flict area,  should  allege  the  filing  of  the  adverse  within  the  60  days' 
publication78  and  the  bringing  of  the  suit  within  the  30  days  after  the 
filing,79  and  should  set  out  the  special  damage  alleged  by  the  plain- 
tiff. Anything  else  required  by  the  local  statutes  or  decisions  should 
be  stated.80  In  Arizona  the  plaintiffs  must  even  allege  and  prove  that 
the  ground  in  controversy  is  mineral  land,  and  everything  else  re- 
quired in  the  land  department,  and  amendment  to  supply  any  material 
allegation  will  not  be  allowed  after  the  expiration  of  the  30-day  peri- 
od.81 in  California,  on  the  other  hand,  a  complaint  simply  alleging 
the  ownership  by  plaintiff  of  his  mining  location  and  the  claim  by  de- 
fendant without  right  of  an  adverse  interest  has  been  held  to  allege 
enough,82  while  several  jurisdictions  have  held  that  the  complaint  may 
be  amended  after  the  expiration  of  the  30-day  period.83  Any  complaint 
which  under  the  state  laws  will  enable  the  state  court  to  determine  the 
title  to  the  conflict  area  ought  to  be  held  sufficient,  even  if,  as  in  the 
case  of  Rough  v.  Simmons,84  it  contains  the  least  possible  essential 

77  The  complaint  must  contain  such  a  description  of  the  property  as  will 
enable  the  court  to  determine  to  what  extent,  if  at  all,  the  claim  of  plain- 
tiff conflicts  with  that  of  defendant.  Cronin  v.  Bear  Creek  Gold  Min.  Co., 
3  Idaho,  614,  32  Pac.  204;  Smith  v.  Imperial  Copper  Co.  (Ariz.)  89  Pac.  510 

7  s  THORNTON  v.  KAUFMAN,  35  Mont.  181,  88  Pac.  796.  See  Matting- 
ly  v.  Lewisohn,  13  Mont.  508,  33  Pac.  Ill;  Cronin  v.  Bear  Creek  Gold  Min. 
Co.,  3  Idaho,  614,  32  Pac.  204.  But,  contra,  that  this  allegation  is  unneces- 
sary, see  Rawlings  v.  Casey,  19  Colo.  App.  152,  73  Pac.  1090;  HAIN  v. 
MATTES,  34  Colo.  345,  83  Pac.  127;  Helbert  v.  Tatem,  34  Mont.  3,  85  Pac. 
733. 

79  A  failure  of  plaintiff  to  allege  that  the  suit  was  begun  within  the  time 
fixed  by  the  United  States  statute  is  not  jurisdictional,  but  can  be  taken 
advantage  of  only  by  demurrer.  Hopkins  v.  Butte  Copper  Co.,  29  Mont.  390, 
74  Pac.  1081.  Or  by  answer  or  special  plea.  Providence  Gold  Min.  Co.  v. 
Marks,  7  Ariz.  74,  60  Pac.  938.  See  Pennsylvania  Min.  Co.  v.  Bales,  18 
Colo.  App.  108,  70  Pac.  444. 

so  See  Jackson  v.  McFall,  36.  Colo.  119,  85  Pac.  638. 

siKEPPLER  v.  BECKER  (Ariz.)  80  Pac.  334.  See  Phillips  v.  Smith 
(Ariz.)  95  Pac.  91. 

82  ROUGH  v.  SIMMONS,  65  Cal.  227,  3  Pac.  804.  See  Contreras  v.  Merck, 
131  Cal.  211,  63  Pac.  336;  Altoona  Quicksilver  Min.  Co.  v.  Integral  Quick- 
silver Min.  Co.,  114  Cal.  100,  45  Pac.  1047;  Parley's  Park  Silver  Mining 
Co.  v.  Kerr,  130  U.  S.  256,  9  Sup.  Ct.  511,  32  L.  Ed.  906;  Bennett  v.  Hark- 
rader,  158  U.  S.  441,  15  Sup.  Ct.  863,  39  L.  Ed.  1046;  Durgan  v.  Redding 
(C.  C.)  103  Fed.  914;  Tonopah  Fraction  Min.  Co.  v.  Douglass  (C.  C.)  123 
Fed.  936.  See,  also,  Rose  v.  Richmond  Min.  Co.,  17  Nev.  25,  27  Pac.  1105, 
where  a  state  statute  dispensed  with  further  allegations. 

ss  DEENEY  v.  MINERAL  CREEK  MILLING  CO.,  11  N.  M.  279,  67  Pac. 
724;  WOODY  v.  HINDS,  30  Mont.  189,  76  Pac.  1. 

s*  65  Cal.  227,  3  Pac.  804. 


§  104)  COURT   PROCEEDINGS    ON    ADVERSE    CLAIMS.  370 

allegations;85  because  all  that  Congress  intended,  namely,  that  the 
right  to  the  ground  should  actually  be  litigated  in  the  proper  court 
in  a  proceeding  begun  in  proper  time  and  the  result  reported  to  the 
land  department,  can  be  accomplished  as  well  by  such  pleading  as  by 
the  more  detailed.  A  careful  lawyer  will  take  no  chances,  however, 
and  in  view  of  the  confused  state  of  the  cases  the  only  thing  to  do  in  a 
jurisdiction  which  has  not  announced  a  rule  is  to  conform  to  the 
most  rigid  requirement  adopted  outside  of  Arizona.  The  Arizona 
rule  is  too  extreme  to  be  followed  in  any  jurisdiction  where  the  matter 
is  not  concluded  by  statute. 

The  answer  of  defendants,  in  addition  to  containing  a  denial  of 
the  disputed  allegation  of  the  plaintiff's  complaint,86  must  set  up 
affirmatively  the  allegations  showing  his  citizenship  and  title  in  him 
to  the  conflict  area.  That  is  because  by  the  statute,  if  neither  party 
establishes  title  to  the  ground  in  controversy,  judgment  to  that  effect 
must  be  entered.87  Because  of  that  statute  the  defendant  is  also  in 
a  way  a  plaintiff.88 

The  plaintiff  in  strictness  should  reply  to  defendant's  affirmative 
allegations  of  ownership,89  and  to  his  allegation  of  citizenship,  if  he 
wants  to  controvert  those  allegations ;  but  in  one  case,  at  least,  it  has 
been  held  to  be  unnecessary  to  reply  to  the  defendant's  allegations 
of  ownership.90  In  any  event,  no  reply  will  be  necessary  where  by 

ss  Durell  v.  Abbott,  6  Wyo.  265,  44  Pac.  647;  Gillis  v.  Downey,  85  Fed. 
483,  29  C.  C.  A.  286.  See  Bennett  v.  Harkrader,  158  U.  S.  441,  15  Sup.  Ct. 
863,  39  L.  Ed.  1046.  For  a  complaint  held  sufficient  in  Colorado,  see  Jack- 
son v.  McFall,  36  Colo.  119,  85  Pac.  638. 

se  For  what  may  be  proven,  under  a  general  denial,  see  Holmes  v.  Sala- 
manca Gold  Min.  &  Mill.  Co.,  5  Cal.  App.  659,  91  Pac.  160.  A  showing  that 
plaintiff's  location  was  made  on  ground  embraced  within  a  prior  valid  sub- 
sisting location  is  held  to  be  a  bar  to  his  recovery  in  HOBAN  v.  BOYER, 
37  Colo.  185,  85  Pac.  837.  But  query,  under  LAVAGNINO  v.  UHLIG,  198 
U.  S.  443,  25  Sup.  Ct.  716,  49  L.  Ed.  1119. 

s  T Act  March  3,  1881,  c.  140,  21  Stat.  505,  amending  Rev.  St.  U.  S.  §  2326 
(U.  S.  Oomp.  St.  1901,  p.  1430).  In  Montana,  under  the  old  statute,  a  locator 
of  a  mining  claim,  who  had  not  filed  a  proper  declaratory  statement  and  who 
had  not  actual  possession,  could  not  have  judgment  in  an  adverse  suit,  even 
though  the  defendants  had  made  no  valid  location.  Hahn  v.  James,  29  Mont. 
1,  73  Pac.  965. 

s  s  BROWN  v.  GURNET,  201  U.  S.  184.  26  Sup.  Ct.  509,  50  L.  Ed.  717: 
Schroder  v.  Aden  Gold  Min.  Co.,  144  Cal.  628,  78  Pac.  20.  In  the  code  states 
the  failure  to  file  a  counterclaim  or  cross-complaint  will  not  prevent  a 
judgment  that  defendant  is  entitled  to  the  conflict  area,  if  only  the  answer 
alleges  facts  showing  that  defendant  should  have  affirmative  relief.  PERE- 
GO  v.  DODGE,  9  Utah,  3,  33  Pac.  221. 

89  Newman  v.  Newton  (C.  C.)  14  Fed.  634.  But  see  Quimby  v.  Boyd,  8 
Colo.  194,  6  Pac.  462. 

»o  IBA  v.  CENTRAL,  ASS'N  OF  WYOMING,  5  Wyo.  355,  40  Pac.  527, 
42  Pac.  20. 


380  ADVERSE    PROCEEDINGS   AND    PROTESTS.  (Ch.  19 

the  state  statute  affirmative  allegations  in  the  answer  are  deemed  to 
be  denied. 

Where  it  appeared  in  an  adverse  suit  that  the  adverse  claimant 
agreed  before  suit  to  convey  the  disputed  premises  to  a  third  person, 
who  was  in  actual  possession  when  the  adverse  suit  was  begun  and  at 
the  time  of  trial,  it  was  nevertheless  held  that  the  adverse  claimant 
could  prosecute  the  adverse  suit  to  judgment,  for  the  reason  that  he 
was  bound  to  quiet  title  for  the  third  person,  and  the  latter's  posses- 
sion was  a  part  of,  and  in  subordination  to,  the  claimant's  title.91 

One  who  has  not  filed  an  adverse  claim  cannot  intervene  in  the  ad- 
verse suit.92  • 

If  either  party  is  relying  on  an  abandonment,  or  forfeiture,  and  a 
relocation,  the  pleading  must  be  governed  by  the  rules  heretofore 
discussed  in  the  chapter  on  abandonment,  forfeiture,  and  relocation. 

The  Trial. 

The  federal  statute  requires  that  the  suit  shall  be  prosecuted  with 
reasonable  diligence  to  final  judgment.  What  is  reasonable  diligence 
is  for  the  court  where  the  adverse  suit  is  pending  to  decide  in  that 
suit,  and  is  not  for  the  land  department  to  pass  upon.93  The  trial 
is  governed  by  the  same  rules  as  any  other  trial  affecting  real  property, 
except  that  the  citizenship  of  the  parties  is  involved  and  that  judgment 
may  be  entered  that  neither  party  is  entitled  to  the  conflict  area.94 

The  rights  of  the  adverse  claimant  have  been  held  to  be  limited 
to  those  existing  at  the  time  of  the  filing  of  his  adverse.95  This 
would  seem,  however,  to  include  all  rights  acquired  during  the  .60-day 
period  of  publication  of  the  patent  application  notice  and  capable  of 
proof  under  the  adverse  claim  filed,  but  would  not  include  a  discovery 
subsequent  to  that  period.96 

On  the  trial  the  court  is  not  concerned  with  defects  in  the  adverse 


si  WOLVERTON  v.  NICHOLS,  119  U.  S.  485,  7  Sup.  Ct.  289,  30  L.  Ed.  474. 

92  MURRAY  v.  POLGLASE,  23  Mont.  401,  59  Pac.  439;  Mont  Blanc 
Consol.  Gravel  Min.  Co.  v.  Debour,  61  Cal.  364. 

as  Richmond  Min.  Co.  v.  Rose,  114  U.  S.  576,  5  Sup.  Ct.  1055,  29  L,  Ed. 
273;  Bernard  v.  Parmelee  (Cal.  App.)  92  Pac.  658;  Davis  v.  McDonald,  33 
Land  Dec.  Dep.  Int.  641.  A  dismissal  of  an  adverse  suit  for  failure  to  pros- 
ecute it  is  as  fatal  to  the  suit  as  if  the  suit  had  never  been  started.  KAN- 
NAUGH  v.  QUARTETTE  MIN.  CO.,  16  Colo.  341,  27  Pac.  245.  See  Bern- 
ard v.  Parmelee,  supra. 

94  Proof  of  citizenship  must  be  by  competent  evidence,  and  not  by  affidavit. 
Strickley   v.    Hill,   22  Utah,  257,   62  Pac.   893,   83   Am.   St.   Rep.   786.     Each 
party  must  rely  on  the  strength  of  his  own  title,  and  not  on  the  weakness 
of  that  of  his  adversary.     MURRAY  HILL  MIN.  &  MILL.  CO.  v.  HAVE- 
NOR,  24  Utah,  73,  66  Pac.  762. 

95  HE  ALE  Y  v.  RUPP,  37  Oolo.  25,  86  Pac.  1015.  96  id. 


§  104)  COURT   PROCEEDINGS   ON  ADVERSE   CLAIMS.  381 

claim  itself,  as  these  are  for  the  land  department  to  pass  upon.97  The 
same  is  true  of  the  question  of  the  $500  expenditure  on  each  claim.88 
Where  the  defendant's  location  is  prior  in  time  to  the  plaintiff's,  the 
court  may  cast  on  the  plaintiff  the  burden  of  rebutting  the  prima  facie 
presumption  that  the  location  prior  in  time  has  the  better  right." 

The  court  may  grant  a  nonsuit  just  as  in  any  other  case ;  10°  but 
the  defendant  must  nevertheless  make  an  affirmative  showing,  unless 
he  is  willing  to  have  the  judgment  show  that  title  is  in  neither  party.101 
After  the  nonsuit  the  proceedings  become  ex  parte,  and  the  plaintiff 
is  not  prejudiced  by  court  rulings  and  instructions,  if  the  nonsuit  has 
properly  been  granted.102  The  court,  having  obtained  jurisdiction  of 
all  parties,  may  grant  full  relief  and  restore  possession  to  the  party  en- 
titled thereto.103  It  is  no  objection  to  a  judgment  in  the  adverse  suit 
that  it  was  based  upon  a  stipulation  of  the  parties,  as  it  is  for  the 
courts  to  determine  the  manner  of  ascertaining  the  facts.104 

The  Verdict. 

The  form  of  verdict  depends  wholly  upon  the  local  statutes  and 
decisions.    Even  under  a  state  statute  requiring  the  jury  to  find  that  the 
party  recovering  the  verdict  was  entitled  to  the  possession  of  the  prop- 
'T  QUIGLEY  v.  GILLETT,  101  Cal.  462,  35  Pac.  1040;    ROSE  v.  RICH- 
MOND MIN.  CO.,  17  Nev.  25,  27  Pac.  1105. 

9sstolp  v.  Treasury  Gold  Min.  Co.,  38  Wash.  619,  80  Pac.  817;  WILSON 
v.  FREEMAN,  29  Mont.  470,  75  Pac.  84,  68  L.  R.  A.  833. 

99  LOCKHART  v.  FARRELL,  31  Utah,  155,  86  Pac.  1077,  1080. 

100  McWILLIAMS  v.  WINSLOW1,  34  Colo.  341,  82  Pac.  538;    Lozar  v.  Nelll 
(Mont.)  96  Pac.  343.    But  see  Iba  v.  Central  Ass'n  of  Wyoming,  5  Wyo.  355, 
40  Pac.  527,  42  Pac.  20.     Unless  plaintiff  establishes  that  at  the  time  of  his 
location  the  ground  in  controversy  was  unoccupied  and  unappropriated  land 
open   to   location,   he  runs   the   risk   of  a   nonsuit.     Lozar  v.   Neill,   supra; 
Moffatt  v.  Blue  River  Gold  Excavating  Co.,  33  Colo.  142,  80  Pac.  139.     For 
a  complaint  held  to  contain  a  sufficient  allegation  of  the  matter  even  under 
the  strict  Arizona  rule,  see  Phillips  v.  Smith  (Ariz.)  95  Pac.  91. 

101  KIRK  v.  MELDRUM,  28  Colo.  453,  65  Pac.  633.     See  Willitt  v.  Baker 
(C.  C.)  133  Fed.  937;    Moffatt  v.  Blue  River  Gold  Excavating  Co.,  33  Colo. 
142,  80  Pac.  139;    McWilliams  v.  Winslow,  34  Colo.  341,  82  Pac.  538;    Lozar 
v.  Neill  (Mont.)  96  Pac.  343. 

102  MOFFATT  v.  BLUE  RIVER  GOLD  EXCAVATING  CO.,  33  Colo.  142, 
80  Pac.  139;    Lozar  v.  Neill  (Mont.)  96  Pac.  343.     Where  the  adverse  claim- 
ant has  waived  his  claim  by  failing  to  introduce  any  evidence,  he  is  not 
entitled  to  insist  on  a  view  of  the  premises  by  the  jury.     CONNOLLY  v. 
HUGHES,   18  Colo.  App.  372,  71  Pac.  681.   'Where  he  does  not  show  that 
he  has  any  right  whatever  to  the  ground  in  question,  he  is  not  entitled  to 
insist  that  the  applicant's  declaratory  statement  is  insufficient.     Milwaukee 
Gold  Extraction  Co.  v.  Gordon  (Mont.)  95  Pac.  995. 

103  Silver  City  Gold  &  Silver  Min.  Co.  v.  Lowry,  19  Utah,  334,  57  Pac.  11. 

104  Barney  v.  Conway,  29  Land  Dec.  Dep.  Int.  388. 


382  ADVERSE    PROCEEDINGS   AND   PROTESTS.  (Ch.  19 

erty,  or  some  part  of  it,  or  of  some  undivided  share  or  interest  in  ei- 
ther, and  to  find  the  nature  and  duration  of  the  interest,  a  general  ver- 
dict for  plaintiff  on  a  complaint  which  alleges  that  the  plaintiff  is 
entitled  to  the  possession  of  certain  described  property,  which  is  unlaw- 
fully detained  by  the  defendant,  and  the  possession  of  which  the 
plaintiff  prays  to  recover,  is  held  by  the  United  States  Supreme  Court 
to  be  sufficient.105  It  is,  however,  the  general  practice  in  adverse 
cases  to  get  a  special  verdict  in  jury  trials,  and  specific  findings  of 
fact  in  trials  to  the  court,  and  various  state  decisions,  still  unreversed, 
declare  special  verdicts  to  be  necessary.106  The  argument  of  these 
state  decisions  is  that  the  act  of  March  3,  1881,  requiring  the  jury 
to  find  that  neither  party  was  entitled,  if  such  should  be  the  fact,  com- 
pels the  finding  of  a  special  verdict,  so  as  to  make  sure  that  the  jury 
did  not  regard  the  contest  as  simply  one  of  the  better  right  between 
the  litigants,  rather  than,  what  it  really  is,  one  of  the  better  right  both 
between  the  litigants  and  as  against  the  United  States.107  The  ar- 
gument does  not  seem  to  be  sound,  however,  since,  if  the  verdict  does 
not  state  that  neither  party  is  entitled  and  does  find  for  one  party,  the 
necessary  conclusion  is  that  such  party  is  entitled.108  Nevertheless 
the  safe  thing  to  do  is  to  take  in  each  case  a  special  verdict.  In  a  prop- 
er case  the  jury  may  apportion  the  disputed  ground  between  the  par- 
ties.109 

Final  Judgment.  '- 

Judgment  follows  upon  verdict  as  in  other  cases.  At  what  time  the 
judgment  becomes  final  for  land  office  purposes  is  in  some  doubt,  as  is 
also  the  question  of  the  effect  of  an  appeal  without  a  stay  of  proceed- 
ings. By  the  terms  of  the  statute  the  judgment  must  be  "final"  to 
justify  further  land  office  proceedings,  and  "it  is  probably  true  that 
the  filing  of  the  judgment  roll  would  not  entitle  the  claimant  to  a  pat- 
ent under  the  United  States  statute,  in  the  face  of  evidence  that  an  ap- 


105  BENNETT  v.  HARKRADER,  158  U.  S.  441,  15  Sup.  Ct.  863,  39  L. 
Ed.  1046.  See  Colorado  Cent.  Consol.  Min.  Co.  v.  Turck,  50  Fed.  888,  2 
C.  C.  A.  67. 

loe  Burke  v.  McDonald,  2  Idaho,  679,  33  Pac.  49;  Manning  v.  Strehlow, 
11  Colo.  451,  18  Pac.  625. 

107  BURKE  v.  McDONALD,  supra.  The  United  States  is  a  quasi  party, 
of  course,  to  every  adverse  suit.  WILSON  v.  FREEMAN,  29  Mont.  470, 
75  Pac.  84,  68  L.  R.  A.  833.  But  only  so  far  that  it  has  agreed  to  accept  the 
Judgment  rendered  in  such  suit  as  conclusive  of  the  right  of  possession  as 
between  the  contending  claimants.  Butte  Land  &  Investment  Co.  v.  Mer- 
riinan,  32  Mont.  402,  80  Pac.  675,  108  Am.  St.  Rep.  590. 

10  s  But  see  McGinnis  v.  Egbert,  8  Colo.  41,  5  Pac.  652. 

io»  Currency  Min.  Co.  v.  Bentley,  10  Colo.  App.  271,  50  Pac.  920. 


§  105)  KELATION   OF   DEPARTMENT    THERETO.  383 

peal  had  been  taken,  or  was  being  taken,  or  that  proceedings  for  a 
new  trial  were  pending."  110 

When  the  time  for  appeal  has  passed,  and  none  has  been  taken,  it 
would  seem  that  the  judgment  is  unquestionably  final;  but  it  would 
also  seem  as  if  the  taking  of  an  appeal  without  a  stay  of  proceedings 
should  keep  the  land  office  from  taking  action  pending  the  appeal. 

The  final  judgment  may  be  entered  by  consent  in  compromise  of 
the  parties'  rights.111 


THE  RELATION  OF  THE  LAND  DEPARTMENT  TO  THE  COURT 
ADVERSE  PROCEEDINGS. 

105.  Pending  the  determination,  of  the  court  proceedings  the  land 
department  stays  all  steps  in  the  application  for  patent,  ex- 
cept the  completion  of  the  posting  and  publication  of  notices, 
the  posting  of  plats,  and  the  filing  of  the  necessary  proofs  of 
both. 

If  the  court  proceedings  are  not  begun,  a  certificate  to  that  effect  is 
obtained,  and  the  patent  application  proceeds  as  in  the  case 
of  no  adverse. 

If  the  court  proceedings  are  begun,  and  end  by  giving  the  whole 
conflict  area  to  the  applicant  for  patent,  he  simply  files  in  the 
land  office  a  certified  copy  of  the  judgment  roll,  and  the  pat- 
ent application  proceeds  as  if  no  adverse  had  been  filed. 

If,  however,  part  or  all  of  the  conflict  area  is  awarded  to  the  adverse 
claimant,  that  part  is  excluded  from  the  application  and  will 
be  patented  to  the  adverse  claimant  without  the  necessity  of 
posting  and  publication  on  his  part,  if  he  complies  with  the 
land  department's  rules. 

"Where  the  court's  judgment  is  that  neither  party  is  entitled,  the 
filing  of  the  certified  copy  of  the  judgment  roll  ends  the  ap- 
plication. 

no  See  DOON  v.  TESCH,  131  Gal.  406,  408,  63  Pac.  764.  There  the  mo- 
tion for  new  trial  was  pending  12  years. 

111  "Where  the  suit  is  compromised,  if  there  is  only  one  adverse,  it  is 
more  convenient  to  dismiss  the  suit,  taking  deed  or  bond  for  deed  from  the 
applicant.  In  such  case,  upon  filing  certificate  of  dismissal,  the  original  sur- 
vey goes  to  patent  without  further  complications,  and  the  defendant  can 
convey  after  entry  according  to  the  terms  of  settlement.  But  in  all  this 
class  of  cases,  and  especially  where  there  are  two  or  more  adverses,  legal 
counsel  should  be  taken.  A  settlement  between  the  applicant  and  one  ad- 
verser  cannot  bind  a  second  adverser.  There  may  be  questions  of  retaining 
end  lines,  or  the  discovery  shaft,  or  patent  improvements ;  and  it  may  be 
very  material,  as  affecting  extralateral  rights  or  on  the  issue  of  priority, 
as  to  which  lode  had  best  take  the  patented  title."  Morrison's  Mining  Rights 
(13th  Ed.)  494.  For  an  instance  of  difficulties  arising  from  such  a  com- 
promise, see  St.  Louis  Min.  &  Mill.  Co.  v.  Montana  Min.  Co.,  171  U.  S.  650, 


384  ADVERSE   PROCEEDINGS   AND   PROTESTS.  (Cll.    19 

Upon  the  filing  of  the  adverse  claim  in  the  land  office  the  register 
or  receiver  indorses  upon  the  same  the  precise  date  of  filing.112  He 
also  notifies  both  parties  of  the  filing  of  the  adverse,  and  preserves  a 
record  of  such  notifications.113  Thereafter,  so  far  as  the  land  affected 
by  the  adverse  is  concerned,  all  proceedings  on  the  application  for 
patent,  with  the  exception  of  the  completion  of  the  publication,  the 
posting  of  notices,  and  of  the  posting  of  plats  and  the  filing  of  the 
necessary  proofs  thereof,  are  suspended  until  the  controversy  is  adjudi- 
cated in  court  or  the  adverse  claim  is  waived  or  withdrawn.114  It 
is  customary  for  the  adverse  claimant  to  obtain  from  the  clerk  of  the 
court  where  the  adverse  suit  is  started,  and  to  file  in  the  land  office,  a 
certificate  that  the  suit  has  been  commenced ;  but  that  seems  not  to  be 
needed,  because,  unless,  after  the  30  days  allowed  the  adverse  claimant, 
the  applicant  gets  a  certificate  from  the  clerk  that  no  suit  has  been 
begun,115  or  that  one  begun  has  been  dismissed,116  the  patent  pro- 
ceedings remain  stayed. 

The  land  office,  as  we  have  seen,  cannot  pass  on  the  question  wheth- 
er the  suit  is  being  prosecuted  with  reasonable  diligence.117  It  must 
act  upon  certificates  from  the  clerk  of  the  court,  and  if  a  certificate 
of  no  suit  pending  is  furnished  because  of  a  default,  and  the  court 
later  sets  aside  the  default  and  reinstates  the  cause,  a  new  certifi- 
cate to  that  effect  will  bind  the  land  office.118  A  receiver's  receipt  is- 
sued pending  the  adverse  suit  is  issued  without  jurisdiction  and  is 
void; 119  but  one  whose  adverse  suit-  has  been  dismissed  cannot  be  al- 
lowed to  contend  that  the  patent  issued  after  such  a  void  receipt  is  al- 
so void.120 


19  Sup.   Ct   61,  43  L.   Ed.  320 ;    Montana   Min.   Co.  v.    St  Louis   Mining  & 
Milling  Co.,  204  U.  S.  204,  27  Sup.  Ct.  254,  51  L.  Ed.  444. 

112  Land  Office  Regulations,  rule  84. 

us  Land  Office  Regulations,  rules  83  and  84. 

114  Land  Office  Regulations,  rule  84.  If,  pending  the  adverse  suit,  the 
applicant  obtains  a  patent  for  the  part  of  the  location  not  in  dispute,  he 
does  not  waive  his  rights  as  to  the  part  in  litigation.  Fox  v.  Mackay,  1 
Alaska,  329;  MACKAY  v.  FOX,  121  Fed.  487,  57  C.  C.  A.  439.  Permitting  him 
to  do  so  was  questioned  in  LAST  CHANCE  MIN.  OO.  v.  TYLER  MIN.  CO., 
157  U.  S.  683,  15  Sup.  Ct.  733,  39  L.  Ed.  859. 

us  Land  Office  Regulations,  rule  88. 

us  Land  Office  Regulations,  rule  86. 

117  RICHMOND  MIN.  CO.  v.  ROSE,  114  U.  S.  576,  5  Sup.  Ot.  1055,  29 
L.  Ed.  273 ;  Davis  v.  McDonald,  33  Land  Dec.  Dep.  Int.  641. 

us  lola  Lode  Case,  1  Land  Dec.  Dep.  Int.  (Rev.  Ed.)  530-  McEvoy  v 
Hyman  (C.  C.)  25  Fed.  539. 

us  Deeney  v.  Mineral  Creek  Milling  Co.,  11  N.  M.  279,  67  Pac.  724. 

120  DENO  v.  GRIFFIN,  20  Nev.  249,  20  Pac.  308.  But  see  Rose  r.  Rich- 
mond Min.  Co.,  17  Nev.  25,  27  Pac.  1105. 


§  105)  RELATION   OF   DEPARTMENT    THERETO.  385 

When  the  adverse  suit  reaches  final  judgment,  it  will  not  be  suffi- 
cient to  file  with  the  register  a  certificate  of  the  clerk  of  the  court, 
setting  forth  the  facts  as  to  such  judgment;  but  before  the  success- 
ful party  will  be  allowed  to  make  entry  he  must  file  a  certified  copy 
of  the  judgment  roll.121  If  the  judgment  is  in  favor  of  the  applicant 
for  patent  (the  defendant  in  the  adverse  suit)  for  the  whole  conflict 
area,  he  need  file,  in  addition  to  the  papers  regularly  required  of  an 
applicant,  nothing  but  the  copy  of  the  judgment  roll.  If  the  judgment 
is  in  favor  of  the  adverse  claimant  as  to  all  or  part  of  the  conflict 
area,  he  may  rest  content  with  filing  the  certified  copy  of  the  judgment 
roll  and  getting  the  conflict  area  awarded  to  him  excluded  from  the 
patent,  or  he  may  ask  that  it  be  patented  to  him.  If  he  seeks  to  patent 
the  conflict  area,  he  may  do  so  without  posting  or  publishing  a  notice 
of  application,  and  hence  without  the  risk  of  an  adverse;  J  but  to  do  so 
he  must  "file  a  certified  copy  of  the  judgment  roll  with  the  register 
of  the  land  office,  together  with  the  certificate  of  the  surveyor  general 
that  the  requisite  amount  of  labor  has  been  expended,  or  improve- 
ments made  thereon,  and  the  description  required  in  all  other  cases, 
and  shall  pay  to  the  receiver  five  dollars  per  acre  for  his  claim,  to- 
gether with  the  proper  fees."  122 

Where  the  adverse  claimant  seeks  to  patent,  also,  ground  not  in  con- 
flict, and  that  is  the  usual  case,  he  must  proceed  as  to  other  than  the 
conflict  area  in  precisely  the  same  way  as  any  other  original  ap- 
plicant128 

Where  the  judgment  is  that  neither  party  has  established  a  right 
of  possession,  the  adverse  claimant  files  the  certified  copy  of  the  judg- 
ment roll  in  the  land  office  and  ends  the  patent  application.  The 
land  thereupon  is  subject  to  relocation  by  either  party  or  by  others.124 
By  such  a  judgment  the  patent  proceedings  are  ended,  and  entry  can- 
not be  had,  except  on  the  prosecution  by  a  qualified  applicant  of  a  new 
patent  proceeding.125 

121  Land  Office  Regulations,  rule  85;  Silver  King  Lode,  14  Land  Dec.  Dep. 
Int.  308. 

$That  is,  without  the  risk  of  adverse  claims  not  already  filed. 

122  Rev.  St  U.  S.  §  2326  (U.  S.  Comp.  St.  1901,  p.  1430) ;    Woods  v.  Holden, 
27  Land  Dec.  Dep.  Int.  375. 

123  Where  pending  the  adverse  proceedings,  the  adverse  claimant  patents 
all  of  his  location  except  the  part  in  conflict,  he  does  not  thereby  waive  his 
adverse  claim.     MACKAY  v.  FOX,  121  Fed.  487,  57  C.  C.  A.  439.     If  suc- 
cessful in  the  adverse  proceedings,  he  simply  proceeds  to  patent  the  conflict 
area  by  itself. 

124  LAUMAN  v.  HOOFER,  37  Wash.  382,  79  Pac.  953. 
i2c  Brien  v.  Moffitt,  35  Land  Dec.  Dep.  Int  32. 

COST.MIN.L.— 25 


386  ADVEKSE   PROCEEDINGS   AND   PROTESTS.  (Ch.    19 


PROTESTS. 

1O6.  A  protest,  unlike  an  adverse,  is  an  objection  made,  not  to  ac- 
quire title  for  the  objector,  but  to  prevent  the  applicant 
for  patent  from  getting  title  because  of  some  fatal  defect, 
and  a  protest  will  not  lie  where  an  adverse  claim  was  proper. 
A  protestant  is  in  the  nature  of  an  amicus  curise. 

By  the  express  provision  of  the  federal  statutes  the  fact  that  no  ad- 
verse claim  .is  filed  carries  with  it  the  assumption  that  none  exists, 
"and  thereafter  no  objection  from  third  parties  to  the  issuance  of  a 
patent  shall  be  heard,  except  it  be  shown  that  the  applicant  has  failed 
to  comply  with  the  terms  of  this  chapter"; 126  the  chapter  being  the 
collected  mining  law  provisions  of  the  Revised  Statutes. 

Who  may  Protest. 

A  protest  may  be  filed,  at  any  time  prior  to  the  issuance  of  patent, 
by  any  person  who  alleges  a  state  of  facts  which  should  prevent  the 
issuance  of  a  patent.127  A  protestant  who  makes  no  claim  to  the  prop- 
erty sought  to  be  patented,  nor  to  any  part  of  it,  is  in  the  position  of  an 
amicus  curise.128  Such  a  one  does  not  have  the  right  of  appeal,129 
however,  and  in  consequence,  if  the  protestant  does  claim  an  interest 
in  the  property,  it  is  desirable  that  he  should  state  in  his  protest  what 
that  interest  is,  so  as  to  get  all  possible  rights  of  appeal.130  The 
protestant  can  acquire  no  title  through  the  protest,  unless  the  protest 
is  based  on  the  ground  that  he  is  a  co-owner  excluded  from  the  patent 
application ;  for  a  judgment  of  the  land  department  rejecting  an  ap- 
plication for  patent  as  a  result  of  a  protest  "is  in  effect  one  of  non- 
suit, and  therefore  not  upon  the  merits,"  where  "the  rights  of  the 
protestants  were  neither  involved  nor  adjudicated."  131  But,  if  the 

/ 

126  Rev.  St.  U.  S.  §<  2325  (U.  S.  Comp.  St.  1901,  p.  1429). 

127  Land  Office  Regulations,  rule  53. 

128  BEALS  v.  CONE,  27  Colo.  473,  62  Pac.  948,  83  Am.  St.  Rep.  92.     See 
WIGHT  v.  DUBOIS  (C.  C.)  21  Fed.  693,  696. 

129  BRIGHT  v.   ELKHORN  MIN.   CO.,  8  Land  Dec.  Dep.  Int.  122;    Dot- 
son  v.  Arnold,  8  Land  Dec.  Dep.  Int.  439. 

130  Nevada  Lode,   16  Land  Dec.   Dep.   Int.  532.;    Opie  v.   Auburn  Milling 
Co.,  29  Land  Dec.  Dep.  Int  230.    The  protestant  cannot  appeal,  if  his  location 
was  made  only  after  protest  filed,   nor  unless  his  interest  is  in  a  surface 
conflict.     SMUGGLER  MINING  CO.  v.  TRUEWORTHY,  19  Land  Dec.  Dep. 
Int.  356;    New  York  Hill  Co.  v.  Rocky  Bar  Co.,  6  Land  Dec.  Dep.  Int.  318. 

isi  BEALS  v.  CONE,  27  Colo.  473,  62  Pac.  948,  951,  83  Am.  St.  Rep.  92. 
"The  fair  inference  from  these  rulings  [of  the  Secretary  of  the  Interior] 
is  that  the  judgment  of  the  department  rejecting  the  application  for  patent, 
and  nothing  more,  leaves  the  applicant  with  the  same  right  as  though  no 
application  had  been  made."  Id. 


§  106)  PROTESTS.  387 

protest  is  sustained  on  some  ground  which  compels  the  applicant  to 
post  and  publish  anew,  the  protestant  will  then  be  entitled  to  file  and 
prosecute  any  adverse  claim  he  may  have.  One  who  should  have  ad- 
versed,  but  who  has  lost  his  rights  by  failure  to  do  so  in  time,  may 
protest,  in  the  hope  thereby  of  getting  another  chance  to  adverse,  or 
of  defeating  the  application  altogether.132 

A  co-owner  excluded  from  the  application  for  patent  may  protest 
under  the  land  office  rules;133  but  that  is  because  the  land  depart- 
ment believes  that  he  cannot  adverse,  and  the  co-owner  case  fur- 
nishes the  one  exception  to  the  rule  that  by  protest  one  cannot  affect 
or  share  in  the  title  actually  issued  in  the  patent  proceedings.  Except 
in  the  case  of  an  excluded  co-owner,  the  office  of  a  protest  is  to  show 
that  the  land  claimed  is  not  the  kind  it  is  represented  to  be,  or  that 
the  applicant  has  failed  to  comply  with  the  law  in  a  matter  which 
would  avoid  the  claim.  Protest  would  be  proper  where  the  applicant 
is  an  alien,  or  is  applying  for  a  patent  for  a  mill  site  which  is  in  fact 
on  mineral  land,  or  is  seeking  to  patent  as  mineral  ground  which  is 
nonmineral,134  or  has  failed  in  a  substantial  particular  in  the  perfection 
of  his  location,  or  has  failed  to  make  the  $500  expenditure  required 
for  patent,  or  has  neglected  to  comply  with  the  statutes  and  depart- 
mental rules  in  regard  to  posting  or  publishing  the  notices  of  applica- 
tion for  patent,  or  has  been  guilty  of  inexcusable  delay  in  prosecuting 
his  application  to  completion,  or  is  seeking  to  acquire  title  to  mineral 
ground  for  purposes  or  uses  foreign  to  those  of  mining  or  the  develop- 
ment of  minerals.f 

132  "Such  an- objector  appears  as  an  amicus  curise — a  friend  of  the  court — 
to  suggest  that  there  has  been  error  and  that  the  proceedings  be  stayed  until 
further  examination  can  be  had.     Such  a  protest  does  not  bring  the  protest- 
ant  into  court  for  the  assertion  of  his  own  title  or  rights — does  not  revivify 
rights  lost  by  a  failure  to  adverse.    True,  if  the  protest  or  objection  is  sus- 
tained, the  proceedings  will  be  set  aside,  new  ones  must  be  commenced,  and 
then  the  objector  may  be  in  a  position  to  assert  his  rights ;   but,  if  the  protest 
or  'objection  be  not  sustained,  the  objector,  like  an  amicus  curise,  has  nothing 
more  to  say  in  the  matter.    In  other  words,  the  right  to  protest  is  not  the  right 
to  contest.    The  latter  is  lost  by  the  failure  to  adverse.    The  former  remains 
open  to  every  one,  holders  of  adverse  claims  as  well  as  others."     Brewer,  J., 
in  WIGHT  v.  DUBOIS  (C.  C.)  21  Fed.  693,  696. 

133  Land  Office  Regulations,  rule  53.     See  Thomas  v.  Elling,  25  Land  Dec. 
Dep.  Int.  495.    In  the  Golden  and  Cord  Lode  Mining  Claims,  31  Land  Dec.  Dep. 
Int.  178,  where  the  co-owner  was  deemed  improperly  excluded,  the  applicant 
was  given  his  election  to  amend  his  application  to  include  the  co-owner  or  to 
have  his  entry  canceled. 

134  German  Ins.  Co.  v.  Hayden,  21  Colo.  127,  40  Pac.  453,  52  Am.  St.  Rep. 
206 ;    LE  FEVRE  v.  AMONSAN,  11  Idaho,  45,  81  Pac.  71. 

tGrand  Canyon  Ry.  Co.  v.  Cameron,  36  Land  Dec.  Dep.  Int.  66. 


388  ADVERSE   PROCEEDINGS   AND   PROTESTS.  (Ch.  1$ 

No  Protest  Where  Adverse  Proper. 

In  the  case  of  a  protest  the  first  question  asked  is,  was  this  prop- 
erly the  subject  of  an  adverse?  If  it  was,  then  no  protest  will  lie; 
for  the  departmental  rule  provides  that  "such  protest  cannot,  how- 
ever, be  made  the  means  of  preserving  a  surface  conflict  lost  by  failure 
to  adverse,  or  lost  by  the  judgment  of  the  court  in  ah  adverse  suit."  135 
It  is  because  of  the  last  rule  that  the  significance  of  the  doctrine  of 
protest  has  apparently  been  greatly  increased  by  the  case  of  Lavagnino 
v. -Uhlig.136  It  has  long  been  a  departmental  holding  that  a  protest 
by  a  senior  locator  against  a  junior  cannot  be  maintained,  even  though 
the  protestant  alleges  and  can  prove  that  the  sole  discovery  of  the 
junior  claim  was  within  the  senior  boundaries,137  yet  the  uniform  hold- 
ing of  the  courts  has  been  that  such  a  second  location  is  void.  Lavag- 
nino v.  Uhlig  decided  that  where  a  valid  junior  location  overlaps  a 
senior,  and  the  senior  is  abandoned  or  forfeited,  the  conflict  area  in- 
ures to  the  junior  location  without  the  necessity  of  any  further  acts 
by  the  junior  locator.  We  have  heretofore  noticed  that  this  does  not 
necessarily  mean  that  the  senior  locator  cannot  "resume  work"  under 
the  statute,  but  that  it  is  possible  that  it  does  mean  that,  if  the  junior 
ground  is  not  located  by  others  prior  to  the  abandonment  or  forfeiture 
of  the  senior  location,  the  senior  ground  would  inure  to  a  junior  loca- 
tion, even  where  there  is  no  discovery  to  support  the  junior  other  than 
that  found  on  the  conflict  area.188 

Unless,  therefore,  the  land  department  changes  its  ruling  as  to  pro- 
test in  such  cases,  or  is  forced  by  the  United  States  Supreme  Court  to 
change  it,  the  logical  outcome  of  Lavagnino  v.  Uhlig  would  seem  to  be 
to  validate  locations  based  on  a  discovery  within  the  limits  of  an  exist- 
ing claim ;  such  locations  to  become  invalid  only  upon  the  location 
of  junior  ground  by  other  locators  prior  to  the  abandonment  or  for- 
feiture of  the  senior,  or  upon  the  patenting  by  the  senior  location  of 
the  discovery  of  the  junior.139  The  reason  why  that  is  the  logical  out- 
come of  Lavagnino  v.  Uhlig  is  that  the  latter  case  is  based  expressly 
upon  the  fact  that,  unless  the  senior  locator  adverses  the  junior  locator's 
application,  the  junior  will  get  patent.  Under  the  present  land  de- 

135  Land  Office  Regulations,  rule  53. 

ise  198  U.  S.  443,  25  Sup.  Ct.  716,  49  L.  Ed.  1119. 

isTGoudy  v.  Kismet  Gold  Min.  Co.,  22  Land  Dec.  Dep.  Int.  624;  American 
Consol.  Min.  &  Mill.  Co.  v.  De  Witt,  26  Land  Dec.  Dep.  Int.  580;  MUTUAL 
MINING  &  MILLING  CO.  v.  CURRENCY  CO.,  27  Land  Dec.  Dep.  Int.  191 ; 
BURNSIDE  v.  O'CONNOR,  30  Land  Dec.  Dep.  Int.  67. 

iss  But  see  LOOKHART  v.  FARRELL,  31  Utah,  155,  86  Pac.  1077  (reversed 
on  other  grounds  in  Farrell  v.  Lockhart,  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L. 
Ed.  ). 

ise  Gwillim.  v.  Donnellan;  115  U.  S.  45,  5  Sup.  Ct.  1110,  29  L.  Ed.  348. 


§  106)  PROTESTS.  389 

partment  rulings  that  is  no  more  certain  in  the  situation  presented  by 
Lavagnino  v.  Uhlig  than  it  is  in  the  situation  of  a  junior  location  based 
upon  a  discovery  wholly  within  a  senior  location's  boundaries.140 

Despite  Lavagnino  v.  Uhlig,  the  United  States  Supreme  Court  may 
yet  say  (if  it  has  not  already  done  so  in  Farrell  v.  LockhartJ)  that 
where  a  junior  location  is  based  solely  upon  a  discovery  within  senior 
ground  a  relocator  of  ground  embraced  in  the  junior  location  is  en- 
titled to  adverse  the  junior's  application  for  patent.  The  Utah  Su- 
preme Court  did  declare  that  doctrine,141  and  the  Supreme  Court  of 
the  United  States  seems  to  recognize  its  validity  in  the  absence  of  an 
abandonment  by  the  senior  locator  prior  to  the  junior  location.**  But 
it  is  believed  that  Lavagnino  v.  Uhlig  holds  to  the  sounder  doctrine. 
With  the  qualifications  that  prior  to  the  abandonment  or  forfeiture 

140  The  brief  of  counsel  for  the  plaintiff  in  error  in  the  case  of  Farrell  v. 

Lockhart,  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed.  ,  points  out  that  the 

record  in  Lavagnino  v.  Uhlig,  198  U.  S.  443,  25  Sup.  Ct.  716,  49  L.  Ed.  1119, 
discloses  that  the  junior  location  in  that  case  was  based  on  a  discovery  in  the 
senior  locator's  ground. 

$  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed.  . 

141  LOCKHART  v.  FARRELL,  31  Utah,  155,  86  Pac.  1077.     With  all  defer- 
ence, the  argument  of  the  Utah  court  that  the  decision  is  controlled  by  the 
Indian  reservation  case  of  Kendall  v.  San  Juan  Silver  Min.  Co.,  144  U.  S.  658, 
12  Sup.  Ct.  779,  36  L.  Ed.  583,  cannot  be  accepted.    The  reasoning  in  LAVAG- 
NINO v.  UHLIG  could  by  no  possibility  extend  to  the  Indian  reservation  case. 
The  Utah  case  is,  however,  to  be  supported  under  Messrs.  Morrison  and  De 
Soto's  test,  namely:     "That  where  a  defect  exists  which  is  a  matter  of  pub- 
lic interest,  and  which  shows  that  the  applicant  has  not  proceeded  regularly 
as  to  the  United  States,  or  as  to  the  entire  body  of  prospectors,  who  are  en- 
titled to  see  that  all  are  required  to  proceed  under  like  restrictions,  a  protest 
will  be  considered ;   but  where  the  point  is  one  of  interest  only  as  between  the 
applicant  and  the  protestant,  or  as  between  the  applicant  and  a  third  party, 
who  is  not  complaining,  the  protestant  cannot  by  his  protest  claim  the  right  to 
litigate  in  this  form  what  he  should  have  contested  by  adverse."     Morrison's 
Mining  Rights  (13th  Ed.)  497.    But  Messrs.  Morrison  and  De  Soto's  test  is  not 
the  one  which  the  land  department  applies.     See  cases  cited  in  note  137,  su- 
pra.   The  Utah  court  would  also  seem  to  be  mistaken  in  regarding  BROWN  v. 
GURNET,  201  U.  S.  184,  26  Sup.  Ct.  509,  50  L.  Ed.  717,  as  controlling  the  de- 
cision of  LOCKHART  v.  FARRELL.     See  the  discussion  of  BROWN  v.  GUR- 
NEY  in  chapter  XVII,  supra. 

**  Farrell  v.  Lockhart,  210  U.  S:  142,  28  Sup.  Ct.  681,  52  L.  Ed.  .     In 

Montague  v.  Labay,  2  Alaska,  575,  the  court  declared  that  the  doctrine  of 
LAVAGNINO  v.  UHLIG,  198  U.  S.  443,  25  Sup.  Ct.  716,  49  L.  Ed.  1119,  must 
be  restricted  to  the  case  of  an  adverse  proceeding  contest  between  a  locator 
and  the  junior  of  two  prior  locators ;  and  in  Dufresne  v.  Northern  Light  Min- 
ing Co.,  2  Alaska,  592,  the  court  apparently  repudiated  LAVAGNINO  v.  UH- 
LIG entirely — .a  repudiation  which  the  case  of  FARRELL  v.  LOCKHART, 
snpra,  unfortunately  seems  to  justify.  It  is  to  be  hoped  that  the  Supreme 
Court  of  the  United  States  will  return  to  the  sound  doctrine  of  LAVAGNINO 
v.  UHLIG. 


390  ADVERSE    PROCEEDINGS   AND   PROTESTS.  (Ch.  19 

of  the  senior  claim  the  nonconflicting  ground  embraced  in  an  attempted 
location  which  is  based  on  a  discovery  within  the  limits  of  the  senior 
claim  may  be  taken  by  valid  locations  by  others,  and  that  the  junior 
locator  must  diligently  look  after  his  claimft  or  be  deemed  to  have 
abandoned  it,  there  seems  to  be  no  rational  reason  why  the  junior 
location  may  not  be  validated  by  the  abandonment  or  forfeiture  of  the 
senior.  That  is  because  by  such  abandonment  or  forfeiture  the  junior 
discovery  becomes  a  discovery  on  land  not  any  longer  embraced  in  a 
prior  location  and  perfects  the  junior  location  by  relation.  It  is  be- 
lieved that  if  no  rights  of  third  persons  intervene  before  the  abandon- 
ment or  forfeiture  of  the  senior  location,  and  the  junior  locator  dili- 
ently  keeps  up  his  annual  labor,  the  so-called  void  junior  location 
should  be  validated  by  such  abandonment  or  forfeiture  of  the  senior, 
and  that  ultimately  the  Supreme  Court  of  the  United  States  will  so 
hold. 

In  view  of  the  case  of  Farrell  v.  Lockhart,142  however,  a  cautious 
miner  will  make  in  every  case  a  complete  relocation  of  ground  which 
he  has  attempted  to  locate  on  a  discovery  within  a  prior  claim,  and 
which,  because  the  prior  claim  has  been  abandoned  or  is  subject  to 
forfeiture,  he  can  now  acquire.  He  should  do  so  anyhow,  because 
even  under  Lavagnino  v.  Uhlig  the  right  of  the  senior  claimant  to 
priority  over  the  junior  claim  could  probably  be  restored  by  resump- 
tion of  work  prior  to  relocation  by  amendment  or  otherwise,143  and  a 
prudent  miner  would  want  to  end  that  possibility. 

Even  in  a  case  where  neither  adverse  nor  protest  is  filed,  the  Com- 
missioner of  the  General  Land  OfHce  may  of  his  own  motion  cancel 
an  entry  for  failure  of  the  applicant  to  comply  with  some  statute  or 
with  some  rule  of  the  department.144  An  unsuccessful  protest  made 
after  entry  does  not,  however,  give  the  protestants  any  basis  for  a 
suit  in  equity  to  annul  the  patent  issued,  nor  any  ground  to  charge 
the  patentee  as  trustee.145 

ft  Diligence  on  his  part  is  a  land  department  test.  Adams  v.  Polglase,  32 
Land  Dec.  Dep.  Int.  477,  33  Land  Dec.  Dep.  Int.  30. 

142  210  U.  S.  142,  28  Sup.  Ct.  681,  52  L.  Ed.  . 

143  gee  OSCAMP  v.  CRYSTAL  RIVER  MIN.  CO.,  58  Fed.  293,  7  C.  C.  A. 
233. 

144  MINERAL  FARM  MIN.  CO.  v.  BARRICK,  33  Colo.  410,  80  Pac.  1055. 
The  rejection  of  an  application  for  patent  for  a  placer  because  the  applicant 
failed  to  show  that  the  ground  was  valuable  for  mining  purposes  or  that  he 
made  the  requisite  improvements  is  not  a  decision  that  the  ground  is  not  plac- 
er ground,  and  is  not  res  judicata  in  action  between  the  applicant  for  placer 
patent  and  a  subsequent  lode  claim  locator.     Clipper  Min.  Co.  v,  Eli  Mining 
&  Land  Co.,  29  Colo.  377,  68  Pac.  286,  64  L,  R.  A.  209,  93  Am,  St.  Rep.  89. 

145  Neilson  v.  Champaign  Min.  &  Mill.  Co.,  119  Fed.  123,  55  C.  C.  A.  576. 


§  106)  PROTESTS.  391 

With  reference  to  protest  it  should  be  remembered  that  the  dis- 
missal of  an  application  for  patent  because  of  a  protest  leaves  the  ap- 
plicant with  his  possessory  title  unimpaired  if  he  has  kept  up  his 
annual  labor.146  If  he  has  not  kept  up  the  annual  labor,  and  the 
application,  is  dismissed  for  his  laches,  the  applicant,  on  renewing  his 
application,  may  be  confronted  by  an  adverse  claim  made  by  a  re- 
locator.147 

But  where  the  applicant  for  patent  delayed  entry,  and  a  relocation  for  failure 
to  do  the  annual  labor  took  place,  the  patentee  was  held  a  trustee  for  the  re- 
locator,  in  South  End  Mining  Co.  v.  Tinney,  22  Nev.  19,  35  Pac.  89. 

146  McGowan  v.  Alps  Consol.  Min.  Co.,  23  Land  Dec.  Dep.  Int  113;   Clipper 
Min.  Co.  22  Land  Dec.  Dep.  Int.  527. 

147  p.  Wolenberg,  29  Land  Dec.  Dep.  Int.  302;   Barklage  v.  Russell,  29  Land 
Dec.  Dep.  Int.  401 ;   Cleveland  v.  Eureka  No.  1  Gold  Mining  &  Milling  Co.,  31 
Land  Dec.  Dep.  Int  69 ;  Lucky  Find  Placer  Claim,  32  Land  Dec.  Dep.  Int  200. 


392  PATENTS.  (Ch.  20 

CHAPTER  XX. 

PATENTS. 

107.  Nature  of  a  Patent. 

108.  Advantages  of  Patent. 

109.  Effect  of  Patent  of  Placer  on  Known  Lodes  in  the  Placer. 

110.  Direct  Attacks  on  Patents. 

111.  Patentees  as  Trustees. 

112.  The  Doctrine  of  Relation. 

NATURE  OF  A  PATENT. 

1O7.  A  patent  is  both  a  judgment  in  rent  of  the  quasi  judicial  land 
department  and  a  conveyance  of  title  by  the  United  States 
to  the  patentee.  If  within  the  jurisdiction  of  the  land  de- 
partment to  issue  and  valid  on  its  face,  a  patent  is  not  sub- 
ject to  collateral  attack. 

A  patent  is  the  conveyance  executed  by  the  United  States  which 
passes  to  the  \pplicant  the  legal  fee-simple  title  to  the  land.1  In  still 
another  aspect,  however,  because  it  is  the  culmination  of  the  patent 
proceedings,  it  is  a  final  judgment  in  rem  rendered  by  that  quasi 
judicial  tribunal,  the  land  department.  The  exact  way  to  state  it  seems 
to  be  that  it  is  a  judgment  which  is  self-executing  as  respects  title,  and 
therefore  is  both  a  judgment  and  a  conveyance.2 

Conclusiveness  of  Patent. 

Because  of  the  patent's  character  as  a  judgment  in  rem  rendered 
on  the  default,  or  after  the  judicial  defeat,  of  all  adverse  claimants, 
the  patentee  takes  free  from  the  claims  of  all  who  are  not  specifically 
protected  under  the  public  land  acts.  All  adverse  claimants  who  must 

1  STEEL  v.  ST.  LOUIS  SMELTING  &  REFINING  CO.,  106  U.  S.  447,  1 
Sup.  Ot.  389,  27  L.  Ed.  226.    A  patent  of  land  from  the  United  States  passes 
to  the  patentee  all  the  interest  of  the  United  States,  whatever  it  may  be,  in 
everything  connected  with  the  soil,  in  everything  forming  any  portion  of  its 
bed  or  fixed  to  its  surface,  and,  in  general,  in  everything  which  is  embraced 
within  the  signification  of  the  term  "land."    MOORE  v.  SMAW^  17  Cal.  199, 
79  Am.  Dec.  123;    Fremont  v.  Flower,  17  Cal.  199,  224;    Johnson  v.  Johnson 
(Idaho)  95  Pac.  499. 

2  "The  land  department  is  a  quasi  judicial  tribunal,  and  a  patent  is  the  judg- 
ment of  that  tribunal  upon  the  questions  presented  and  a  conveyance  in  ex- 
ecution of  the  judgment."    United  States  v.  Northern  Pac.  R.  Co.,  95  Fed.  864, 
869,  37  C.  C.  A.  290 ;   JAMES  v.  GERMANIA  IRON  CO.,  107  Fed.  597,  600,  46 
C.  C.  A.  476;  Le  Marchel  v.  Teagarden  (C.  C.)  152  Fed.  662.    See  United  States 
v.  Winona  &  St.  P.  R.  Co.,  67  Fed.  948,  15  C.  C.  A.  96. 


§  107)  NATURE    OF   PATENT.  393 

adverse  are  barred  by  the  patent,  if  all  jurisdictional  facts  for  its  issue 
existed,  and  those  who  might  have  protested  have  no  recourse  except 
in  a  proper  case  to  persuade  the  United  States  to  file  a  bill  in  equity  10 
vacate  the  patent  for  fraud.  So  conclusive  is  a  patent  that  even  on  di- 
rect attack  by  the  government  the  presumption  that  the  patent  was  cor- 
rectly issued  can  be  overcome  only  by  clear  and  convincing  proof  of 
the  false  representations  whereby  it  was  secured.3 

A  patent  issued  without  authority  of  law,  as  well  as  one  issued  in 
spite  of  a  law  forbidding  its  issuance,  is  invalid ;  *  and  so,  it  seems,  is 
one  purporting  to  convey  a  claim  in  excess  of  the  legal  size,5  as  well 
as  one  containing  so  inaccurate  a  description  as  to  render  the  identity 
of  the  property  wholly  uncertain ; 6  and,  of  course,  such  absolutely 
void  patents  are  subject  to  collateral  attack.7  A  patent  which  is  within 
the  jurisdiction  of  the  land  department  to  issue  and  is  valid  on  its  face 
is  not,  however,  subject  to  collateral  attack.8  Except  on  direct  attack 


3  UNITED  STATES  v.  IRON  SILVER  MIN.  CO.,  128  U.  S.  673,  9  Sup.  Ct. 
195,  32  L.  Ed.  571 ;   United  States  v.  King,  83  Fed.  188,  27  C.  C.  A.  509. 

4  BURPENNING  v.  CHICAGO,  ST.  P.,  M.  &  O.  R.  CO.,  163  U.  S.  321, 16  Sup. 
Ct.  1018,  41  L.  Ed.  175;   GARRARD  v.  SILVER  PEAK  MINES  (C.  C.)  82  Fed. 
578 ;    Doolan  v.  Carr,  125  U.  S.  618,  8  Sup.  Ct.  1228,  31  L.  Ed.  844 ;    United 
States  v.  Winona  &  St.  P.  R.  Co.,  67  Fed.  948,  15  C.  C.  A.  96;    Ledbetter  v. 
Borland,  128  Ala.  418,  29  So.  579 ;    Standard  Quicksilver  Co.  v.  Habishaw,  132 
Cal.  115,  64  Pac.  113.    A  patent  for  land  previously  granted  to  other  parties  is 
in  this  class.     FRANCCEUR  v.  NEWHOUSE  (C.  C.)  40  Fed.  618.     A  patent 
issued  while  an  adverse  suit  is  pending  is  void  as  against  the  adverse  claimant. 
ROSE  v.  RICHMOND  MIN.  CO.,  17  Nev.  25,  27  Pac.  1105,  affirmed  Richmond 
Mining  Co.  v.  Rose,  114  U.  S.  576,  5  Sup.  Ct.  1055,  29  L.  Ed.  273.     Except,  of 
course,  where  his  adverse  suit  is  dismissed.     Deno  v.  Griffin,  20  Nev.  249,  20 
Pac.  308. 

s  Lakin  v.  Dolly  (O.  C.)  53  Fed.  333 ;  Lakin  v.  Roberts,  54  Fed.  461,  4  C.  C. 
A.  438.  But,  to  make  the  patent  invalid,  it  must  be  clear  that  several  claims 
could  not  have  been  included  in  the  one  patent  as  a  consolidated  claim.  PEA- 
BODY  GOLD  MIN.  CO.  v.  GOLD  HILL  MIN.  CO.  (C.  C.)  97  Fed.  657 ;  Id., 
Ill  Fed.  817,  49  C.  C.  A.  637;  CARSON  CITY  GOLD  &  SILVER  MIN.  CO.  v. 
NORTH  STAR  MIN.  CO.,  83  Fed.  658,  28  C.  C.  A.  333 ;  Tucker  v.  Masser,  113 
U.  S.  203,  5  Sup.  Ct.  420,  28  L.  Ed.  979 ;  Poire  v.  Wells,  6  Colo.  406 ;  Poire  v. 
Leadville  Improvement  Co.,  6  Colo.  413.  In  TUCKER  v.  MASSER,  113  U.  S. 
203,  5  Sup.  Ct.  420,  28  L.  Ed.  979,  a  patent  for  a  placer  was  held  to  be  valid,  al- 
though it  covered  more  than  160  acres,  since  it  included  several  placer  loca- 
tions, all  owned  by  the  same  applicant. 

e  Cullacott  v.  Cash  G.  &  S.  M.  Co.,  8  Colo.  179,  6  Pac.  211. 

7  GARRARD  v.  SILVER  PEAK  MINES  (C.  C.)  82  Fed.  578. 

s  ST.  LOUIS  SMELTING  &  REFINING  CO.  v.  KEMP,  104  U.  S.  636,  26  L. 
Ed.  875 ;  STEEL  v.  ST.  LOUIS  SMELTING  &  REFINING  CO.,  106  U.  S.  447, 
1  Sup.  Ct.  389,  27  L.  Ed.  226.  See  CALHOUN  GOLD  MIN.  CO.  V.  AJAX 
GOLD  MIN.  CO.,  182  U.  S.  499,  21  Sup.  Gt.  885,  45  L.  Ed.  1200. 


394  PATENTS.  (Ch.  20 

on  a  patent,  it  is  conclusively  presumed  that  everything  has  been  done 
that  should  have  been  done.9 

Not  all  questions  are  settled  by  a  patent,  however.  The  patent  neces- 
sarily contains  various  conditions  and  exceptions,  and  even  if  these 
are  not  expressed  they  are  implied.  While  conditions  and  exceptions 
put  in  the  patent  by  the  land  department  without  authority  of  law  are 
absolutely  void,  and  for  that  reason  are  disregarded,10  the  law  itself 
fixes  certain  ones.  A  patentee,  for  instance,  takes  subject  to  pre-exist- 
ing easements  for  ditches  and  reservoirs  used  in  connection  with  water 
rig;hts  acquired  under  the  federal  statutes11  and  to  easements  for  high- 
ways,12 So  a  placer  patent  does  not  convey  lodes  known  to  exist  at 
the  time  of  the  application  for  placer  patent.13  A  lode  patented  across 
a  tunnel  site,  where  the  lode  was  located  after  the  tunnel  site,  does 
not  get  blind  veins  cut  later  by  the  tunnel  and  claimed  properly  by  the 
tunnel  owner.14  So  a  townsite  patent  is  not  conclusive  as  against  a 
known  lode.15  But  in  all  these  respects  a  patented  claim  is  at  no  dis- 
advantage as  contrasted  with  an  unpatented  one. 

s  GALBRAITH  v.  SHASTA  IRON  CO.,  143  Gal.  94,  76  Pac.  901.  See  Unit- 
ed States  v.  Marshall  Silver  Min.  Co.,  129  U.  S.  579,  9  Sup.  Ct.  343,  32  L.  Ed. 
734.  The  patent  is  conclusive  of  all  facts  necessary  to  establish  the  validity 
thereof.  SHARKEY  v.  CANDIANI,  48  Or.  112,  85  Pac.  219,  7  L.  R.  A.  (N.  S.) 
791.  But  it  does  not  by  relation  make  valid  a  void  declaratory  statement. 
Hickey  v.  Anaconda  Copper  Min.  Co.,  33  Mont.  46,  81  Pac.  806.  But  see  Laws 
Mont.  1907,  p.  23,  where  it  is  enacted  that  patent  shall  be  conclusive  that  the 
Montana  statute  has  been  complied  with,  but  that  where  questions  of  priority 
are  involved,  and  the  date  of  location  is  claimed  to  have  been  prior  to  the  date 
of  record,  the  date  of  location  shall  be  an  issuable  fact. 

10  "The  patent  of  a  mining  claim  carries  with  it  such  rights  to  the  land 
which  includes  the  claim  as  the  law  confers,  and  no  others,  and  those  rights 
can  neither  be  enlarged  nor  diminished  by  any  reservations  of  the  officers  of 
the  land  department."    DAVIS  v.  WIEBBOLD,  139  U.  S.  507,  528,  11  Sup.  Ct. 
628,  35  L.  Ed.  238;    DEFFEBACK  v.  HAWKE,  115  U.  S.  392,  6  Sup.  Ct.  95, 
29  L.  Ed.  423 ;   Clary  v.  Hazlitt,  67  Cal.  286,  7  Pac.  701 ;   Talbott  v.  King,  6 
Mont.  76,  9  Pac.  434;    Butte  City  Smoke  House  Lode  Cases,  6  Mont.  397,  12 
Pac.  858. 

11  Rev.  St.  U.  S.  §  2340  (U.  S.  Comp.  St.  1901,  p.  1437).    See  Act  Jan.  21,  1895, 
c.  37,  28  Stat.  635 ;    Act  -May  14,  1896,  c.  179,  §  2,  29  Stat.  120 ;    Act  May  11, 
1898,  c.  292,  30  Stat.  404. 

12  Rev.  St  U.  S.  §  2477  (U.  S.  Comp.  St.  1901,  p.  1567). 

is  A  placer  patent  will,  of  course,  pass  to  the  patentee  all  lodes  other  than 
"known  lodes."  CRANE'S  GULCH  MIN.  CO.  v.  SCHERRER,  134  Cal.  350, 
66  Pac.  487,  86  Am.  St.  Rep.  279.  And  under  the  federal  act  of  1866  even 
"known  lodes"  passed.  Id. 

i*  CREEDE  &  C.  C.  MIN.  &  MILL.  CO.  v.  UINTA  TUNNEL  MIN.  &  TRANSP. 
CO.,  196  U.  S.  337,  25  Sup.  Ct.  266,  49  L,  Ed.  501. 

16  See  chapter  VII,  §  29,  supra. 


§  108)  ADVANTAGES  OF   PATENT.  395 


ADVANTAGES   OF   PATENT. 

1O8.    It  is  in  the  conclnsiveness  of  title  to  the  land  conveyed  that  a 
patent  excels  a  location. 

The  first  question  to  be  considered  is  wherein  a  patent  gives  the 
patentee  an  advantage  that  he  did  not  possess  as  a  locator.  Upon  the 
surface  it  would  seem  as  if  the  total  gain  by  patent  was  the  conversion 
of  a  possessory  title,  retained  on  condition  of  the  continued  perform- 
ance of  annual  labor,  into  the  legal  title  in  fee  simple.  "A  valid  and 
subsisting  location  of  mineral  lands,"  said  the  United  States  Supreme 
Court  in  1884,  "made  and  kept  up  in  accordance  with  the  provisions 
of  the  statutes  of  the  United  States,  has  the  effect  of  a  grant  by  the 
United  States  of  the  right  of  present  and  exclusive  possession  of  the 
lands  located."  16  And  that  dictum  expresses  what  has  been  the  gen- 
eral conception  of  the  dignity  and  importance  of  a  mining  claim.17 

16  GWILLIM  v.  DONNELLAN,  115  U.  S.  45,  49,  5  Sup.  Ct.  1110,  29  L.  Ed. 
348.  See  Butte  City  Smoke  House  Lode  Cases,  6  Mont.  397,  12  Pac.  858. 

if  "it  has  therefore  been  repeatedly  held  that  mining  claims  are  property 
in  the  fullest  sense  of  the  word,  and  may  be  sold,  transferred,  mortgaged,  and 
inherited  without  infringing  the  title  of  the  United  States,  and  that,  when  a 
location  is  perfected,  it  has  the  effect  of  a  grant  by  the  United  States  of  the 
right  of  present  and  exclusive  possession."  MANUEL  v.  WULFF,  152  U.  S. 
505,  510,  511,  14  Sup.  Ct.  651,  38  L.  Ed.  532 ;  O'CONNELL  v.  PINNACLE  GOLD 
MINES  CO.  (C.  O.)  131  Fed.  106 ;  Id.,  140  Fed.  854,  72  C.  C.  A.  645,  4  L.  R.  A. 
(N.  S.)  919 ;  Oscamp  v.  Crystal  River  Min.  Co.,  58  Fed.  293,  7  C.  C.  A.  233. 
See  Moore  v.  Steelsmith,  1  Alaska,  121 ;  Worthen  v.  Sidway,  72  Ark.  215,  79 
S.  W.  777 ;  Harris  v.  Equator  Min.  &  S.  Co.  (C.  C.)  8  Fed.  863 ;  McFeters  v. 
Pierson,  15  Colo.  201,  24  Pac.  1076,  22  Am.  St.  Rep.  388;  Hughes  v.  Devlin, 
23  Cal.  501 ;  Suessenbach  v.  First  Nat.  Bank,  5  Dak.  477,  41  N.  W.  662.  Com- 
pare White  Star  Min.  Co.  v.  Hultberg,  220  111.  578,  77  N.  E.  327.  The  possess- 
ory right  to  a  mining  claim  is  properly  assessed  as  real  estate.  Bakersfield 
&  Fresno  Oil  Co.  v.  Kern  County,  144  Cal.  148,  77  Pac.  892.  It  is  within  a 
statute  abolishing  joint  tenancy  in  real  property.  Binswanger  v.  Henninger, 
1  Alaska,  509.  It  is  subject  to  a  judgment  lien  upon  real  property.  Butte 
Hardware  Co.  v.  Frank,  25  Mont.  344,  65  Pac.  1 ;  Bradford  v.  Morrison  (Ariz.) 
86  Pac.  6.  But  see,  contra,  Phrenix  Min.  &  Mill.  Co.  v.  Scott,  20  Wash.  48,  54 
Pac.  777.  It  descends  to  the  intestate  owner's  heirs.  KEELER  v.  TRUEMAN, 
15  Colo.  143,  25  Pac.  311 ;  Lohman  v.  Helmer  (C.  C.)  104  Fed.  178f  That  un- 
patented  mining  claims  belonging  to  an  intestate  owner  pass  to  his  heirs  by 
descent,  instead  of  going  to  them  as  purchasers,  and  therefore  an  administra- 
tor's sale  of  the  claims  in  the  manner  fixed  by  the  state  statute  passes  title  to 
the  purchaser  at  such  sale,  is  held  in  O'CONNELL  v.  PINNACLE  GOLD 
MINES  CO.  (C.  C.)  131  Fed.  106 ;  Id.,  140  Fed.  854,  72  C.  C.  A.  645,  4  L.  R. 
A.  (N.  S.)  919.  A  mining  clainrrnay  be  taken  and  sold  under  execution.  McKeon 
v.  Bisbee,  9  Cal.  137,  70  Am.  Dec.  642.  Compare  Roseviile  Alta  Min.  Co.  v. 
Iowa  Gulch  Min.  Co.,  15  Colo.  29,  24  Pac.  920,  22  Am.  St.  Rep.  373.  Where  the 
claim  is  used  as  a  place  of  residence  for  the  owner  and  his  family,  it  may  even 


396  PATENTS.  (Ch.  20 

But,  while  a  mining  location  is  a  grant  by  the  United  States,  it  is 
far  from  being  as  satisfactory  a  grant  as  a  patent  is.  In  the  first  place, 
the  location  has  the  condition  of  annual  labor  attached  to  it,  while  a 
patent  has  not.  Then  a  location  has  no  presumptions  in  its  favor,  ex- 
cept as  against  an  express  relocation,  and  must  be  proved  by  showing 
both  the  mineral  nature  of  the  land  revealed  in  a  discovery  and  the  acts 
of  location  duly  performed,  while  a  mining  patent  establishes  once  for 
all,  except  on  direct  attack  by  the  government  for  fraud,  the  mineral 
character  of  the  land,18  the  fact  of  a  valid  discovery,19  and  the  legal 
existence  of  the  location  merged  in  the  patent  as  prior  to  any  other 
conflicting  surface  location  not  excepted  from  it.20  Not  only  so,  but 

be  claimed  as  a  homestead  exemption.  GAYLORD  v.  PLACE,  98  Cal.  472,  33 
Pac.  484.  Its  validity  is  not  affected  by  the  lapse  of  many  years  without  an  at- 
tempt to  patent  it.  CLIPPER  MIN.  CO.  v.  ELI  MINING  &  LAND  CO.,  194 
U.  S.  220,  24  Sup.  Ct.  632,  48  L.  Ed.  944.  See  Chapman  v.  Toy  Long,  4  Sawy. 
(U.  S.)  28  Fed.  Cas.  No.  2,610. 

is  DAVIS  v.  SHEPHERD,  31  Colo.  141,  72  Pac.  57.  See  Tombstone  Town- 
site  Cases,  2  Ariz.  272,  15  Pac.  26 ;  Gale  v.  Best,  78  Cal.  235,  20  Pac.  550,  12 
Am.  St.  Rep.  44. 

i»  CALHOUN  GOLD  MIN.  CO.  v.  AJAX  GOLD  MIN.  CO.,  182  U.  S.  499, 
21  Sup.  Ct.  885,  45  L.  Ed.  1200 ;  Carson  City  Gold  &  Silver  Min.  Co.  v.  North 
Star  Min.  Co.,  83  Fed.  658,  28  C.  C.  A.  333 ;  Bunker  Hill  &  S.  Mining  &  Con- 
centrating Co.  v.  Empire  State-Idaho  Mining  &  Developing  Co.,  109  Fed.  538, 
48  O.  C.  A.  665.  The  patent  does  not  necessarily  assert  a  discovery  prior  to 
the  date  of  entry  for  patent,  however.  CREEDE  &  C.  C.  MIN.  &  MILL.  CO. 
v.  UINTA  TUNNEL  MIN.  &  TRANSP.  CO.,  196  U.  S.  337,  25  Sup.  Ct.  266,  49 
L.  Ed.  501.  While  the  patent  raises  a  conclusive  presumption  that  there  is 
an  apex  of  a  vein  within  the  ground  patented,  there  is  no  presumption  that  it 
is  the  vein  in  dispute,  nor  that  it  dips  beyond  the  side  lines.  GRAND  CEN- 
TRAL MIN.  CO.  v.  MAMMOTH  MIN.  CO.,  29  Utah,  490,  83  Pac.  648.  See, 
also,  United  States  Min.  Co.  v.  Lawson,  134  Fed.  769.  67  C.  C.  A.  587 ;  LAW- 
SON  v.  UNITED  STATES  MIN.  CO.,  207  U.  S.  1,  28  Sup.  Ct.  15,  52  L.  Ed. 
65 ;  DAVIS  v.  SHEPHERD,  31  Colo.  141,  72  Pac.  57. 

20  EMPIRE  STATE-IDAHO  MINING  &  DEVELOPING  CO.  v.  BUNKER 
HILL  &  SULLIVAN  MINING  &  CONCENTRATING  CO.,  114  Fed.  420,  52 
C.  C.  A.  222;  Fox  v.  Mackay,  1  Alaska,  329;  Last  Chance  Min.  do.  v.  Bunker 
Hill  &  S.  Mining  &  Concentrating  Co.,  131  Fed.  579,  66  C.  C.  A.  299.  After 
patent  it  is  conclusively  presumed  that  all  the  preliminary  requirements  have 
been  properly  carried  out.  GALBRAITII  v.  SHASTA  IRON  CO.,  143  Cal.  94, 
xviii,  76  Pac.  901,  1127;  Talbott  v.  King,  6  Mont  76,  9  Pac.  434:  Chamb- 
ers v.  Jones,  17  Mont.  156,  42  Pac.  758 ;  SHARKEY  v.  CANDIANI,  48  Or.  112, 
85  Pac.  219,  7  L.  R.  A.  (N.  S.)  791.  As  to  surface  not  in  conflict  with  the  sen- 
ior location  the  patented  junior  ground  will  not  be  deemed  the  senior ;  and 
hence,  where  a  broad  vein  is  bisected  in  its  course  by  the  side  lines  of  the  two 
locations  as  they  lie  after  the  patenting  of  the  junior,  the  one  first  located  will 
have  the  extralateral  rights.  United  States  Min. 'Co.  v.  Lawson.  134  Fed.  769, 
67  C.  C.  A.  587;  LAWSON  v.  UNITED  STATES  MIN.  CO.,  207  U.  S.  1,  28 
Sup.  Ct.  15,  52  L.  Ed.  65.  By  a  California  statute  a  statement  of  the  date  of 


§  108)  ADVANTAGES   OF   PATENT.  397 

while  two  out  of  three  states  hold — erroneously  it  is  believed  21 — that 
a  location  which  does  not  exceed  the  legal  limits  for  a  single  claim  is 
nevertheless  excessive  to  the  extent  that,  because  of  the  irregular  course 
of  the  vein,  more  than  the  legal  number  of  feet  on  each  side  of  the 
vein  is  embraced  in  it,  they  so  hold  only  as  regards  unpatented  claims ; 
for,  once  a  patent  is  issued  for  that  kind  of  a  location,  it  is  no  longer 
open  to  attack  as  excessive.22 

Patent  also  confers  certain  advantages  in  a  contest  for  extralateral 
rights.23  Extralatral  rights  are  discussed  in  the  next  chapter.  But 
it  may  be  well  to  note,  as  a  corollary  to  the  doctrine  about  excessive 
locations  just  stated,  that  a  patent  establishes  that  any  secondary  known 
or  blind  vein  apexing  within  the  patented  ground  belongs  to  the  paten- 
tee, even  though  it  may  be  more  than  300  feet  away  from  the  discovery 
vein.24  Still  another  advantage  of  a  patent  in  the  case  of  a  placer  is 
that  all  lodes  discovered  after  application  for  placer  patent  belong  to 
the  patentee. 

With  the  delivery  of  a  patent  the  title  which  the  United  States  had 
in  the  patented  property  vests  in  the  patentee.  He  takes  a  new  start 

location  of  a  claim  or  claims  contained  in  a  United  States  mineral  land  patent 
is  made  prima  facie  evidence  of  the  date  of  location.  St.  Cal.  1905,  p.  78,  c.  81. 

21  WATER  VALE  MIN.  CO.  v.  LEACH,  4  Ariz.  34,  33  Pac.  418.     See  chap- 
ter XII,  §  55a  (2),  supra. 

22  PEABODY  GOLD  MIN.  CO.  v.  GOLD  HILL  MIN.  CO.  (C.  C.)  97  Fed. 
657 ;   Id.,  Ill  Fed.  818,  49  C.  C.  A.  637 ;  ARGONAUT  CONSOLIDATED  MIN- 
ING &  MILLING  CO.  v.  TURNER,  23  Colo.  400,  48  Pac.  685,  58  Am.  St.  Rep. 
245.     The  patent  is  conclusive  as  to  the  limits  of  the  claim.     WATERLOO 
MIN.  CO.  v.  DOE  (O.  C.)  56  Fed.  685 ;   Id.,  82  Fed.  45,  27  C.  C.  A.  50.    It  some- 
times happens  that  the  calls  in  a  patent  do  not  agree  with  the  monuments 
on  the  ground,  and  Congress  has  therefore  enacted  that  the  monuments  shall 
govern.    Act  April  28,  1904,  c.  1796,  33  Stat.  545  (U.  S.  Comp.  St.  Supp.  1907, 
p.  477),  amending  Rev.  St.  U.  S.  §  2327  (U.  S.  Comp.  St.  1901,  p.  1431).     Com- 
pare Galbraith  v.  Shasta  Iron  Co.,  143  Cal.  94,  xviii,  76  Pac.  901,  1127 ;  Alaska 
Gold  Min.  Co.  v.  Barbridge,  1  Alaska,  311;    Meydenbauer  v.  Stevens  (D.  C.) 
78  Fed.  787. 

23  See  Carson  City  Gold  &  Silver  Min.  Co.  v.  North  Star  Min.  Co.,  83  Fed. 
658,  28  C.  C.  A.  333.    In  determining  priority  as  to  surface  conflicts,  the  patent 
determines  priority  as  to  incidental  extralateral  rights.     EMPIRE  STATE- 
IDAHO  MINING  &  DEVELOPING  CO.  v.  BUNKER  HILL  &   SULLIVAN 
MINING  &  CONCENTRATING  CO.,  114  Fed.  420,  52  C.  O.  A.  222.    But  not 
priority  as  to  extralateral  rights  dependent  on  the  question  of  which  location 
containing  only  part  of  the  width  of  a  broad  vein  is  senior.    LAWSON  v.  UNIT- 
ED STATES  MIN.  CO.,  207  U.  S.  1,  28  Sup.  Ct.  15,  52  L.  Ed.  65. 

24  See  note  22,  supra.    All  blind  veins  apexing  in  the  patented  ground  belong 
to  the  patentee.    CALHOUN  GOLD  MIN.  CO.  v.  AJAX  GOLD  MIN.  CO.,  182 
U.  S.  499,  21  Sup.  Ct.  885,  45  L.  Ed.  1200.    With  the  exception,  of  course,  of 
those  covered  by  a  prior  tunnel  site.    CREEDE  &  C.  C.  MIN.  &  MILL.  CO.  v. 


-t>S  PATENTS.  (Ch.  20 

in  the  world  as  a  fee-simple  owner.25  Even  the  running  of  the  statute 
of  limitations  against  him  is  stopped  by  the  patent,  and  its  running  must 
now  date  from  the  patent.26  The  United  States  was  not  subject  to 
the  statute  of  limitations,  and  its  grantee  gets  all  the  right  it  had.  What 
is  more,  once  the  government  has  parted  with  title,  all  right  to  recall 
it,  except  by  resort  to  a  suit  in  equity,  is  gone.27  It  is  in  the  con- 
clusiveness  of  title  to  the  land  owned,  and  to  every  part  thereof,  that 
a  patent  excels  a  location,28  while  the  disadvantages  of  patent  are 
few.* 

UINTA  TUNNEL  MIN.  &  TRANSP.  CO.,  196  U.  S.  337,  25  Sup.  Ot  266,  49  L. 
Ed.  501. 

25  After  patent  no  parties  have  the  right  to  enter  upon  the  land  and  pros- 
pect for  mineral.     FRANCCEUR  v.  NEWHOUSE  (C.  C.)  40  Fed.  618. 

26  REDFIELD  v.  PARKS,  132  U.  S.  239,  10  Sup.  Ct.  83,  33  L.  Ed.  327.    See 
Tyee  Consol.  Min.  Co.  v.  Langstedt,  136  Fed.  124,  69  O.  C.  A.  548. 

27  "With  the  title  passes  away  all  authority  or  control  of  the  executive  de- 
partment over  the  land  and  over  the  title  which  it  has  conveyed.    It  would  be 
as  reasonable  to  hold  that  any  private  owner  who  has  conveyed  it  to  another 
can,  of  his  own  volition,  recall,  cancel,  or  annul  the  instrument  which  he  has 
made  and  delivered.     If  fraud,  mistake,  error,  or  wrong  has  been  done,  the 
courts  of  justice  present  the  only  remedy.    These  courts  are  as  open  to  the 
United  States  to  sue  for  the  cancellation  of  the  deed  or  reconveyance  of  the 
land  as  to  individuals,  and  if  the  government  is  the  party  injured  this  is  the 
proper  course."    MOORE  v.  ROBBINS,  96  U.  S.  530,  533,  24  L.  Ed.  848.    Even 
a  patent  issued  on  an  erroneous  survey  can  be  corrected  only  by  suit,  unless  the 
patentee  will  surrender  the  patent  and  make  a  deed  to  the  United  States  of 
the  erroneously  included  land.    UNITED  STATES  v.  RUMSEY,  22  Land  Dec. 
Dep.  Int.  101.    See  Baldwin  Star  Coal  Co.  v.  Quinn,  28  Land  Dec.  Dep.  Int.  307. 

28  The  added  dignity  given  by  a  patent  is  recognized  by  a  Montana  case, 
which  holds  that  a  one-year  state  statute  of  limitations  applicable  to  mining 
claims  does  not  apply  to  patented  property.     Horst  v.  Shea,  23  Mont.  390,  59 
Pac.  364.     See,  also,  Rader  v.  Allen,  27  Or.  344,  41  Pac.  154. 

*  One  disadvantage  of  a  patent  is  that  in  a  state  where  dower  exists  it  will 
attach  to  a  patented  claim,  but  will  not  to  an  unpatented.  BLACK  v.  ELK- 
HORN  MIN.  CO.,  163  U.  S.  445,  16  Sup.  Ct.  1101,  41  L.  Ed.  221.  Of  dower 
in  patented  ground  the  Tennessee  court  said:  "We  hold,  therefore,  that  dower 
is  assignable  to  the  widow  in  mines,  quarries,  and  the  like,  and  she  may  en- 
joy the  same,  either  by  an  allotment  of  metes  and  bounds,  or  by  a  share  of 
the  rents  and  royalties,  whether  the  mines  or  quarries  were  opened  and  oper- 
ated in  the  life  of  the  husband,  whether  the  same  be  operated  by  the  husband, 
or  by  lessee  paying  rent  or  royalty  on  the  yield."  Clift  v.  Clift,  87  Tenn.  17, 
25,  9  S.  W.  198,  360.  Another  disadvantage  of  patent  is  that  after  patent  it  is  no 
longer  possible  to  swing  the  claim  or  adjust  boundaries,  so  as  to  make  the  loca- 
tion lie  along  the  subsequently  ascertained  course  of  the  vein,  or  so  as  to  make 
the  end  lines  parallel. 


§  HO)  DIRECT   ATTACKS   ON    PATENTS.  "()t) 

EFFECT    OF    PATENT    OF    PLACER    ON    KNOWN    LODES    IN    THE 

PLACER. 

109.  It  Has  been  decided  that  the  holder  of  a  patent  to  a  placer,  which 

includes  a  known  lode  not  mentioned  in  the  application  for 
placer  patent,  has  no  title  to  such  known  lode,  and  cannot 
disturb  the  peaceable  possession  of  such  lode  by  another, 
whether  that  other  claims  title  or  is  a  mere  trespasser. 

The  subject  of  known  lodes  in  placers  has  been  discussed  several 
times  already ; 29  but  it  is  desirable  to  note  here  that  it  has  been  de- 
cided that  the  holder  of  a  patent  to  a  placer,  which  includes  a. known 
lode  not  mentioned  in  the  application  for  placer  patent,  has  no  title 
to  such  known  lode,  and  cannot  disturb  the  peaceable  possession  of 
such  lode  by  another,  whether  that  other  "claims  title  or  is  a  mere 
trespasser.80  In  chapter  XXI,  §  113,  the  soundness  of  this  doctrine 
is  doubted. 

DIRECT  ATTACKS  ON  PATENTS. 

110.  A  patent  may  be  set  aside  for  fraud  by  a  suit  brought  in  equity 

by  the  United  States  within  six  years  from  the  date  of  the 
patent's  issuance,  provided  the  property  has  not  previously 
been  conveyed  to  innocent  purchasers  for  value,  and  provided 
the  United  States  establishes  its  case  by  a  preponderance  of 
the  evidence. 

A  suit  by  the  United  States  to  annul  a  patent  must  be  brought  within 
six  years  after  the  date  of  the  issuance  of  the  patent.81  The  burden  of 
proof  as  to  fraud  is  on  the  government,  although  in  consequence  it  has 
to  establish  a  negative  proposition.88  The  suit  will  not  lie  as  against 
an  innocent  purchaser  for  value,88  but  as  against  the  patentee  or  a 

29  See  chapter  XV,  §•§  75-77,  and  chapter  XVIII,  §  lOla. 

so  REYNOLDS  V.  IRON  SILVER  MIN.  CO.,  116  U.  S.  687,  6  Sup.  Ct  001,  29 
L.  Ed.  774;  Noyes  v.  Clifford  (Mont.)  94  Pac.  842.  Compare  IRON  SILVER 
MIN.  CO.  v.  CAMPBELL,  135  U.  S.  280,  10  Sup.  Ct.  765,  34  L.  Ed.  155. 

si  Act  March  3,  1801,  c.  561,  §  8,  26  Stat.  1000  (U.  S.  Conip.  St.  1001,  p.  1521). 
A  five-year  period  was  fixed  as  to  patents  issued  prior  to  the  act.  The  Su- 
preme Court  of  the  United  States  has  construed  the  statute  to  bar  suits  to  set 
aside  patents  invalid  when  made  and  issued  prior  to  the  act.  United  States  v. 
Chandler-Dunbar  Water  Power  Co,,  209  U.  S.  447,  28  Sup.  Ot.  579,  52  L.  Ed.  881. 

32  COLORADO  COAL  &  IRON  CO.  v.  UNITED  STATES,  123  U.  S.  307,  S 
Sup.  Ct  131,  31  L.  Ed.  182;    UNITED  STATES  v.  IRON  SILVER  MIN.  CO., 
128  U.  S.  673,  9  Sup.  Ct  195,  32  L,  Ed.  571 ;    United  States  v.  King,  83  Fed. 
188,  27  C.  C.  A,  509. 

33  COLORADO  COAL  &  IRON  CO.  v.  UNITED  STATES,  supra;    UNITED 
STATES  v.  WIXOXA  &  ST.  P.  R.  CO.,  67  Fed.  948,  15  C.  C.  A.  96;    United 
States  v.  Clark,  138  Fed.  294,  70  C.  C.  A.  584. 


400  PATENTS.  (Ch.  20 

grantee  who  does  not  pay  value  or  does  not  take  innocently  "a  court 
of  equity  may,  in  a  direct  proceeding  for  that  purpose,  set  aside  such 
a  patent  or  certificate,  or  declare  the  legal  title  under  it  to  be  held  in 
trust  for  one  who  has  a  better  right  to  it,  in  cases  in  which  the  action 
of  the  land  department  has  resulted  from  fraud,  mistake,  or  erroneous 
views  of  the  law."  8* 


PATENTEES   AS   TRUSTEES. 

111.   In  proper  cases  patentees  will  be  held  to  be  trustees  for  others 
equitably  entitled  to  the  land. 

Where  a  suit  is  brought  by  an  individual  to  have  the  patentee  de- 
clared a  trustee  for  him,  he  must  fail  if  it  appear  that  his  location  was 
made  for  the  first  time  some  years  after  the  issuance  of  the  patent.35 
His  proper  course  is  to  get  the  United  States  to  sue  to  cancel  the  patent 
for  fraud ;  and  if  the  only  showing  is  that  placer  ground  was  bought 
as  lode  ground  at  the  enhanced  price,  and  with  the  smaller  surface 
applicable  to  lode  claims,  such  a  suit  must  fail.36  In  any  event  the 
party  seeking  to  have  a  trust  declared  must  make  out  a  case  against 
the  patentee  by  evidence  that  is  plain  and  convincing  beyond  reasonable 
controversy.87  It  has  been  held  that  such  a  suit  is  clearly  within  the 
jurisdiction  of  the  federal  courts,  regardless  of  the  citizenship  of  the 
parties.38 

34  UNITED  STATES  v.  WINONA  &  ST.  P.  R.  CO.,  67  Fed.  948,  959,  15  C. 
O.  A.  96.  See  San  Pedro  &  Canon  del  Agua  Co.  v.  United  States,  146  U.  S. 
120,  13  Sup.  Ct.  94,  36  L.  Ed.  911.  A  patent  will  not  be  set  aside  or  modified 
for .  mistake,  except  where  the  proof  is  plain  beyond  reasonable  controversy. 
THALLMANN  v.  THOMAS,  111  Fed.  277,  49  C.  C.  A.  317. 

sspEABODY  GOLD  MIN.  CO.  v.  GOLD  HILL  MIN.  CO.,  Ill  Fed.  817,  49 
C.  C.  A.  637. 

se  id. 

37  THALLMANN  v.  THOMAS,  111  Fed.  277,  49  C.  C.  A.  317;  Copper  River 
Mining  Co.  v.  McClellan,  2  Alaska,  134.  For  a  bill  making  a  sufficient  show- 
ing of  a  trust,  see  LOCKHART  v.  LEEDS,  195  U.  S.  427,  25  Sup.  Ct.  76, 
49  L.  Ed.  263.  The  suit  to  declare  a  trust  may  be  brought  after  the 
issuance  of  a  receiver's  receipt  and  before  patent,  if  the  plaintiff  need  not 
adverse.  MALABY  v.  RICE,  15  Colo.  App.  364,  62  Pac.  228.  If  the  patentee 
bring  ejectment,  the  trust  may  be  set  up  as  an  equitable  defense  in  juris- 
dictions where  such  defenses  are  allowed.  MURRAY  v.  MONTANA  LUM- 
BER &  MFG.  CO.,  25  Mont.  14,  63  Pac.  719.  An  unsuccessful  protest  after 
entry  does  not  give  the  protestants  any  basis  for  a  suit  to  charge  the  patentee 
as  trustee.  Neilson  v.  Champagne  Mining  &  Milling  Co.,  119  Fed.  123,  55  C. 
C.  A.  576. 

ss  GATES  v.  PRODUCERS'  &  CONSUMERS'  OIL  CO.  (C.  C.)  96  Fed.  7. 


§  112)  DOCTRINE   OF   RELATION.  401 

Where  a  co-owner  has  been  excluded  from  the  patent  the  patentees 
become  trustees  for  him  to  the  extent  of  his  interest,89  and  it  seems  that 
he  need  not  await  the  issuance  of  patent  before  suing.40  Laches  will 
operate  as  a  bar.41 


THE  DOCTRINE  OF  RELATION. 

112.   The  title  conveyed  by  the  patent  relates  back  to  the  completion 
of  the  location. 

In  the  case  of  patents,  as  in  the  case  of  locations,  the  doctrine  of  re- 
lation of  title  applies.  The  title  conveyed  by  the  patent  relates  back  to 
the  completion  of  the  location  upon  which  the  application  for  patent 
was  based  42  But  the  doctrine  of  relation  cannot  be  applied  to  cut  off 
the  rights  of  a  prior  patent  on  a  junior  location.48  Because  the  order 
in  which  discovery  and  the  acts  of  location  take  place  is  immaterial  to 
the  government,  a  patent  does  not  fix  the  time  to  which  the  title  re- 
lates, except  that  it  asserts  that  at  the  time  of  entry  there  was  a  dis- 
covery and  a  perfect  location.44 

After  patent  the  property  conveyed  by  the  United  States  to  the 
patentee  becomes  fully  subject  to  constitutional  state  legislation.  As 
the  Supreme  Court  of  the  United  States  said  in  an  early  case:  "We 
hold  the  true  principle  to  be  this :  That  whenever  the  question  in  any 
court,  state  or  federal,  is  whether  a  title  to  land  which  had  once  been 

so  BALLARD  v.  GOLOB,  34  Colo.  417,  83  Pac.  376.  See  Hallack  v.  Traber, 
23  Colo.  14,  46  Pac.  110;  Cascaden  v.  Dunbar,  157  Fed.  62,  84  C.  C.  A.  566. 
The  fact  that  he  did  not  adverse  the  patent  application  is  immaterial.  STEV- 
ENS v.  GRAND  CENTRAL  MIN.  CO.,  133  Fed.  28,  67  C.  C.  A.  284;  Suessen- 
bach  v.  First  Nat.  Bank,  5  Dak.  477,  41  N.  W.  662.  But  if,  pending  the  patent, 
he  parts  with  his  interest  to  one  of  the  co-owners,  to  whom  patent  issues,  he 
has,  of  course,  lost  all  ground  to  complain.  WETZSTEIN  v.  LARGEY,  27  Mont. 
212,  70  Pac.  717. 

40  MALABY  v.  RICE,  15  Colo.  App.  364,  62  Pac.  228. 

41  Patterson  v.  Hewitt,  195  U.  S.  309,  25  Sup.  Ct.  35,  49  L.  Ed.  214.     See 
Holt  v.  Murphy,  207  U.  S.  407,  28  Sup.  Ct.  212,  52  L.  Ed.  271. 

42  CALHOUN  GOLD  MIN.  CO.  v.  AJAX  GOLD  MIN.  CO.,  182  U.  S.  499,  21 
Sup.  Ct.  885, 45  L.  Ed.  1200 ;    Silver  Bow  Min.  &  Mill.  Co.  v.  Clark,  5  Mont  378,  5 
Pac.  570 ;  Talbott  v.  King,  6  Mont.  76,  9  Pac.  434 ;  Kahn  v.  Old  Telegraph  Min. 
Co.,  2  Utah,  174. 

43  Eureka  Consol.  Min.  Co.  v.  Richmond  Min.  Co.,  4  Sawy.  (U.  S.)  302,  Fed. 
Cas.  No.  4,548 ;  RICHMOND  MIN.  CO.  OF  NEVADA  v.  EUREKA  CONSOLI- 
DATED MIN.  CO.,  103  U.  S.  839,  26  L.  Ed.  557;    Hall  v.  Equator  Mining  & 
Smelting  Co.,  Fed.  Cas.  No.  5,931. 

44  CREEDE  &  C.  C.  MIN.  &  MILL.  CO.  v.  UINTA  TUNNEL  MIN.  &  TRANSP 
CO.,  196  U.  S.  337,  25  Sup.  Ct.  266,  49  L.  Ed.  501. 

COST.MIN.L.— 26 


402  PATENTS.  (Cll.  20 

the  property  of  the  United  States  has  passed,  that  question  must  be 
resolved  by  the  laws  of  the  United  States ;  but  that  whenever,  accord- 
ing to  those  laws,  the  title  shall  have  passed,  then  that  property,  like  all 
other  property  in  the  state,  is  subject  to  state  legislation,  so  far  as 
that  legislation  is  consistent  with  the  admission  that  the  title  passed 
and  vested  according  to  the  laws  of  the  United  States."  *5 

«  Wilcox  v.  McConnell,  13  Pet  (U.  S.)  498,  517,  10  L.  Ed.  264. 


iUBSURFACE   EIGHTS. 


403 


CHAPTER  XXI. 

SUBSURFACE   RIGHTS.* 

113.  Presumption  as  to  Subsurface  Rights. 

114.  Extralateral  Rights  Dependent  on  the  Vein  Apexing  In  the  Mining 

Location. 

115.  Extralateral  Rights  Dependent  on  the  Identity,  Continuity,  and  Dip 

of  the  Vein. 

116.  Extralateral  Rights  and  the  Right  to  Cross  Cut  through  Another's 

Land. 

117.  Extralateral  Rights  under  the  Act  of  1866. 

118.  Extralateral  Rights  under  the  Act  of  1872. 
118a.          Parallelism  of  End  Lines. 

118b.          Side  Lines  as  End  Lines. 

118c.          Vein  Crossing  One  End  Line  and  One  Side  Line. 

118d.  Vein  Crossing  One  End  Line,  but  Stopping  before  Another 
Boundary  Line  is  Reached. 

118e.          Vein  Not  Reaching  Any  Boundary  Line. 

118f.  Vein  Crossing  Two  Opposite  Parallel  Boundary  Lines,  but  in  Its 
Course  Going  out  of  and  Returning  through  Another  Bound- 
ary Line. 

118g.          Vein  Entering  and  Departing  through  Only  One  Boundary  Line. 

118h.  Vein  Covered  by  Conflicting  Surface  Locations  Which  have  Di- 
verse Extralateral  Right  Planes — "Judicial  Apex." 

118i.  Broad  Vein  Bisected  on  Its  Strike  by  the  Common  Side  Line 
of  Two  Locations. 

118J.  Vein  Splitting  on  Its  Strike. 

118k.          Secondary  or  Incidental  Veins. 

1181.  Vein  Dipping  under  Prior  Patented  Land. 

118m.         "Theoretical  Apex." 

llSn.  Rights  of  Grantor  and  Grantee  after  a  Grant  of  Part  of  a  Lo- 
cated Apex. 

119.  Cross  Veins. 

120.  Crossing  of  Extralateral  Rights  on  the  Dip  of  the  Same  Vein. 
121-122.     Veins  Uniting  on  the  Dip  and  on  the  Strike. 

123.  Extralateral  Right  Compromise  Agreements  and  Deeds. 

124.  Diagram  to  Illustrate  Relative  Extralateral  Rights. 

Perhaps  the  most  striking  feature  of  American  mining-  law  is  the 
law  of  the  apex;  i.  e.,  the  law  of  the  right  to  the  extralateral  pur- 
suit of  veins  in  their  descent  into  the  earth.  While  an  effort  is  being 
made  to  get  Congress  to  abolish  the  extralateral  right  doctrine,  the 
fact  remains  that  all  patented  and  unpatented  lode  mining  claims  now 
existing  and  of  the  proper  shape  have  the  right  of  extralateral  pur- 
suit of  the  veins  which  apex  in  the  claims,  and  no  legislation  by 
Congress  can  take  that  right  away  from  patented  claims,  at  least,  with- 
out violating  the  federal  Constitution.  The  extralateral  right  doctrine 

*The  questions  of  easements  arising  between  surface  and  subsurface  own- 
ers are  reserved  for  discussion  in  chapter  XXV. 


404  SUBSURFACE   BIGHTS.  (Ch.  21 

must  therefore  remain  for  generations  an  important  doctrine,  what- 
ever rule  Congress  may  adopt  for  future  locations. 

The  top  or  apex  of  a  vein  we  have  already  defined.  It  is  for  the 
jury  to  say  in  a  given  case  which  claim  owner  embraces  within  the 
lines  of  his  location  the  apex  of  the  vein  in  dispute.1  It  is  for  the  court 
to  announce  what  is  the  law  of  the  apex  applicable  to  the  given  situ- 
ation. 

Intralimital  Rights. 

Preliminary  to  an  understanding  of  the  extralateral  right  doctrine,  a 
word  is  necessary  about  intralimital  rights ;  that  is,  the  rights  in  a 
mining  claim  which  the  common  law  gives  to  the  owner  of  a  fee 
simple,  and  which  are  qualified  only  by  the  extralateral  and  other 
rights  given  by  the  mining  law  to  others.2 

PRESUMPTION  AS  TO  SUBSURFACE  RIGHTS. 

113.  Prima  facie  a  lode  mining  claim  includes  everything  within  its 
common-law  boundaries,  and  therefore  no  one  else  than  the 
lode  claim's  owner  has  a  right  to  take  ore  within  those  bound- 
aries, even  if  he  takes  it  from  a  vein  apexing  outside  the 
claim,  unless  he  actually  owns  that  vein's  apex.  That  is  be- 
cause by  a  location  and  by  a  patent  of  a  lode  claim  full  com- 
mon-law property  rights  pass  to  the  locator  and  to  the  pat- 
entee in  all  the  veins  within  the  claim's  common-law  bound- 
aries, whether  those  veins  apex  inside  or  outside  the  claim, 
subject  only  to  the  appropriation  and  retention  of  veins  which 
apex  outside  by  the  locators  of  the  apexes  of  such  veins. 

While  prima  facie  everything  within  the  common-law  boundaries 
of  a  placer  mining  patented  or  unpatented  claim  belongs  to  the 
claim's  owner,  this  presumption  is  rebutted  -where  "known. 
lodes"  exist,  and  the  case  of  Reynolds  v.  Iron  Silver  Min.  Co.3 
suggests  that  a  "known  lode"  may  be  worked  on  its  dip  by 
those  who  do  not  own  the  apex.  But  query? 

Prima  facie  everything  within  the  boundaries  of  the  location  or 
patented  claim,  both  to  the  heights  above  and  to  the  depths  below, 

iBlue  Bird  Min.  Co.  v.  Largey  (C.  C.)  49  Fed.  289;  Illinois  Silver  Mining 
&  Milling  Co.  v.  Raff,  7  N.  M.  336,  34  Pac.  544.  The  prima  facie  presumption 
that  a  lode,  the  known  course  of  which  is  substantially  parallel  with  the  side 
lines,  continues  in  the  same  direction  throughout  the  length  of  the  claim, 
seems  to  apply  where  extralateral  rights  are  involved.  Wakeman  v.  Nor- 
ton, 24  Colo.  192,  49  Pac.  283. 

2  "Intralimital"  is  a  word  coined  by  Mr.  Lindley.  1  Lindley  on  Mines 
(2d  Ed.)  §  549.  See  Jefferson  Min.  Oo.  v.  Anchoria-Leland  Min.  &  Mill.  Co, 
32  Colo.  176,  186,  75  Pac.  1070,  64  L.  R.  A.  925. 

»  116  U.  S.  687,  6  Sup.  Ct  601,  29  L.  Ed.  774. 


§  113)  PRESUMPTION   AS  TO   SUBSURFACE   RIGHTS.  405 

belongs  to  the  surface  owner.4  It  is  presumed  that  the  owner  of  a 
mining  claim,  whatever  its  shape,  is  the  owner  of  all  deposits  of  ore 
within  its  boundaries  extended  downward,  and  it  requires  a  preponder- 
ance of  the  testimony  to  show  that  any  such  ore  deposits  are  part  of  a 
lode  having  its  apex  outside.5  Whether  that  presumption  is  over- 
come by  showing  merely  that  the  vein  beneath  the  claim  apexes  out- 
side, or  whether  it  is  not  overcome  unless  the  person  claiming  the 
right  to  work  beneath  the  claim  first  establishes  that  the  apex  of  the 
vein  belongs  to  him,  was  once  a  troublesome  question.  That  ques- 
tion was:  Is  the  presumption  in  favor  of  the  claim  within  the  lines 
of  which  the  ore  is  found  merely  a  presumption  that  the  ore  is  in  a 
vein  apexing  in  the  location,  or  is  it  a  presumption  of  right  which 
can  only  be  rebutted  by  one  who  shows  that  he  himself  has  a  better 
right  ?  The  Nevada  court  said  that,  when  a  lode  locator  who  com- 
plains of  a  taking  of  ore  within  his  boundaries  is  shown  not  to  have 
the  apex  of  the  vein  containing  the  ore,  he  does  not  make  a  case, 
even  though  the  defendant  does  not  own  the  apex.8  But  the  prevail- 
ing view  has  been  that,  while  a  lode  locator  takes  subject  to  the  extra- 
lateral  rights  of  others,  those  others  have  no  rights  on  the  dip  unless 
they  actually  own  the  apex.7 

*  "We  are  of  opinion  that  the  patent  conveys  the  subsurface,  as  well  as 
the  surface,  and  that,  so  far  as  this  case  discloses,  the  only  limitation  on 
the  exclusive  title  thus  conveyed  is  the  right  given  to  pursue  a  vein  which 
on  its  dip  enters  the  subsurface."  ST.  LOUIS  MIN.  &  MILL.  CO.  v.  MON- 
TANA MIN.  CO.,  194  U.  S.  235,  24  Sup.  Ct.  654,  48  L.  Ed.  953;  Boston  & 
Montana  Consol.  Copper  &  Silver  Min.  Co.  v.  Montana  Ore  Purchasing  Co., 
188  U.  S.  632,  23  Sup.  Ct.  434,  47  L.  Ed.  626. 

5  IRON  SILVER  MIN.  CO.  v.  ELGIN  MINING  &  SMELTING  CO.,  118  U. 
S.  196,  6  Sup.  Ct.  1177,  30  L.  Ed.  98 ;  Bell  v.  Skillicorn,  6  N.  M.  399,  28  Pac. 
768 ;  Red  Wing  Gold  Min.  Co.  v.  Clays,  30  Utah,  242,  83  Pac.  841 ;  Wakeman 
v.  Norton,  24  Colo.  192,  49  Pac.  283 ;  Leadville  Co.  v.  Fitzgerald  (U.  S.)  Fed. 
Cas.  No.  8,158;  Cheesman  v.  Shreeve  (C.  C.)  37  Fed.  36.  See  Ophir  Silver 
Min.  Co.  v.  Superior  Court,  147  Cal.  467,  478,  82  Pac.  70. 

«  "It  is  entirely  immaterial  whether  the  defendant  has  any  title  whatever, 
if  the  ledge  does  not  belong  to  the  plaintiff."  JONES  v.  PROSPECT  MOUN- 
TAIN TUNNEL  CO.,  21  Nev.  339,  350,  31  Pac.  642.  See  Montana  Co.  v. 
Clark  (C.  C.)  42  Fed.  626,  and  Golden  v.  Murphy,  27  Nev.  379,  75  Pac.  625, 
76  Pac.  29. 

7  "But  the  plaintiff  also  urges  that  wherever  the  apex  of  the  vein  may 
be,  or  if  it  have  no  apex  at  all,  but  is  simply  a  blanket  vein,  if  its  apex  be 
not  between  the  defendant's  side  boundaries,  the  defendant  has  no  right  to 
follow  it  within  the  plaintiff's  grounds,  or  within  the  boundaries  of  the 
claims  of  which  the  plaintiff  is  in  possession.  That  is  a  proper  construction 
of  the  law.  The  defendant's  right  to  that  ore,  if  he  have  such,  must  be  based 
solely  upon  the  fact  that  the  vein  has  its  apex  within  its  [his?]  own  side  lines." 
Gilpin  v.  Sierra  Nevada  Consol.  Min.  Co.,  2  Idaho  (Hasb.)  696,  704,  23  Pac. 
547,  1014.  See  Leadville  Min.  Co.  v.  Fitzgerald,  4  Morr.  Min.  Rep.  (U.  S.) 


406  SUBSURFACE    RIGHTS.  (Ch.  21 

This  prevailing  view  has  the  sanction  of  the  latest  cases  in  the  Unit- 
ed States  Supreme  Court.  In  the  first  of  these  cases  the  court  is 
particular  to  limit  a  patentee's  ownership  only  "by  virtue  of  the  grant 
to  another  locator  to  pursue  a  vein  apexing  within  his  surface  bound- 
aries on  its  dip  downward  through  some  side  line  into  the  ground  em- 
braced within  the  patent.  It  withdraws  from  the  grant  made  by  the 
patent  only  such  veins  as  others  own  and  have  a  right  to  pursue/' 8 
In  the  second  of  these  cases  the  court  said :  "Title  by  patent  from  the 
United  States  to  a  tract  of  ground,  theretofore  public,  prima  facie  car- 
ries ownership  of  all  beneath  the  surface,  and  possession  under  such 
patent  of  the  surface  is  presumptively  possession  of  all  beneath  the 
surface.  This  is  the  general  law  of  real  estate.  True,  in  respect  to 
mining  property,  this  presumption  of  title  to  mineral  beneath  the 
surface  may  be  overthrown  by  proof  that  such  mineral  is  a  part  of 
a  vein  apexing  in  a  claim  belonging  to  some  other  party.  But  this 
is  a  matter  of  defense;  and  while  proof  of  ownership  of  the  apex 
may  be  proof  of  ownership  of  the  vein  descending  on  its  dip  below 
the  surface  of  property  belonging  to  another,  yet  such  ownership  of 
the  apex  must  first  be  established  before  any  extralateral  title  to  the 
vein  can  be  recognized."  9  And  again  it  said :  "Coming,  now,  to 
the  merits,  it  is  not  open  to  dispute  that  the  defendants  were  taking 
ore  from  beneath  the  surface  of  the  plaintiff's  four  claims.  The 
question  therefore  arises:  What  right  had  they  to  thus  mine  and 

380,  Fed.  Cas.  No.  8,158;  Doe  v.  Waterloo  Min.  Co.  (C.  C.)  54  Fed.  935; 
Parrott  Silver  &  Copper  Co.  v.  Heinze,  25  Mont.  139,  64  Pac.  326,  53  L.  R. 
A.  491,  87  Am.  St.  Rep.  386;  Maloney  v.  King,  25  Mont  188,  64  Pac.  351; 
Id.,  30  Mont.  158,  76  Pac.  4;  State  v.  District  Court,  25  Mont.  504,  65  Pac. 
1020 ; .  Grand  Central  Min.  Co.  v.  Mammoth  Min.  Co.,  29  Utah,  490,  83  Pac. 
648;  Ophir  Silver  Min.  Co.  v.  Superior  Court,  147  Cal.  467,  82  Pac.  70: 
Anaconda  Copper  Mining  Co.  v.  Heinze,  27  Mont.  161,  69  Pac.  909 ;  Wakeman 
v.  Norton,  24  Colo.  192,  196,  49  Pac.  283;  Cheesman  v.  Shreeve  (C.  C.)  40 
Fed.  787;  Bell  v.  Skillicorn,  6  N.  M.  399,  28  Pac.  768;  Carson  City  Gold 
&  Silver  Min.  Co.  v.  North  Star  Min.  Co.,  83  Fed.  658,  28  C.  O.  A.  333; 
Duggan  v.  Davey,  4  Dak.  110,  26  N.  W.  887. 

s  ST.  LOUIS  MIN.  &  MILL.  CO.  v.  MONTANA  MIN.  CO.,  194  U.  S.  235, 
238,  24  Sup.  Ct.  654,  655,  48  L.  Ed.  953.  The  opinion  ends  with  the  quota- 
tion from  Consolidated  Wyoming  Gold  Min.  Co.  v.  Champion  Min.  Co.  (C. 
C.)  63  Fed.  540:  "Hands  off  of  any  and  every  thing  within  my  surface  lines 
extending  vertically  downward,  until  you  prove  that  you  are  working  upon 
and  following  a  vein  which  has  its  apex  within  your  surface  claim  of  which 
you  are  the  owner."  The  opinion  of  an  engineer  that,  if  the  vein  continues 
to  dip  at  the  same  angle  at  which  it  starts,  it  will  reach  the  point  in  dis- 
pute within  my  lines,  is  not  such  proof.  Heinze  v.  Boston  &  M,  Consol  Cop- 
per &  Silver  Min.  Co.,  30  Mont.  484,  77  Pac.  421. 

oLAWSON  v.  UNITED  STATES  MIN.  CO.,  207  U.  S.  1,  8,  28  Sup.  Ct. 
15,  17,  52  L.  Ed.  65. 


§  113)  PRESUMPTION  AS  TO   SUBSURFACE   RIGHTS.  407 

remove  ore?     They  must  show  that  the  ore  was  taken  from  a  veir* 

belonging  to  them."  10 

Analogy  of  Powers  to  Revoke  and  to  New-Appoint. 

On  this  theory  veins  which  apex  outside  the  claim  are  not  ex- 
cepted  from  the  location  or  patent,  but  are  covered  by  each  with  a 
right,  which  is  comparable  to  a  power  retained  by  a  grantor  to  re- 
voke an  appointment  of,  and  to  new-appoint,  real  property,  retained! 
by  the  United  States  to  give  these  veins  to  any  subsequent  locator  or 
patentee  of  ground  which  incloses  their  apexes  within  parallel  end  lines. 
The  analogy  ought  to  be  completed,  however,  by  adding  that  the  condi- 
tion of  annual  labor11  which  attaches  to  the  apex  location  will  inure 
in  favor  of  the  intralimital  right  location,  whether  the  latter  precedes 
or  follows  the  apex  location,  in  case  of  an  abandonment  of  the  apex 
location  or  of  the  forfeiture  of  it  by  a  relocation  so  shaped  that  the  ore 
deposit  in  the  intralimital  right  location  is  no  longer  affected. 

A  middle  course  must  be  held  between  the  view,  on  the  one  hand, 
that  the  right  of  extralateral  pursuit  is  in  the  nature  of  an  easement 
imposed  upon  the  land  under  which  the  vein  dips,  and  the  view,  on 
the  other  hand,  that  the  grant  of  a  lode  claim  by  the  United  States 
government,  evidenced  by  location  or  patent,  excepts  all  veins  apex- 
ing  outside  the  granted  land's  boundaries.  This  middle  view  ad- 
mits that  the  locator  of  an  apex  gets  a  fee  in  the  dip  of  the  vein,  de- 
feasible only  by  abandonment  or  forfeiture,  and  that  the  patentee  there- 
of gets  an  absolute  fee  in  the  dip  of  the  vein,  even  though  in  each  case 
the  dip  is  under  ground  which  was  patented  before  the  apex  of  the  dip- 
ping vein  was  discovered; 12  but  this  middle  view  also  gives  that 

10  207  U.  S.  10,  28  Sup.  Ct.  18,  52  L.  Ed.  65. 

11  The  objection  to  calling  this  n  condition,  when  it  is  for  the  benefit  of' 
some  one  else  than  the  grantor  and  his  heirs,  is  of  no  weight     The  United 
States,  as  a  sovereign  grantor,  may  impose  conditions  for  third  persons,  even 
if  other  grantors  may  not;    and  it  really  does  do  that  whenever  it  author- 
izes a  forfeiture  by  a  co-owner  or  a   relocation  by  third  parties.     As  sov- 
ereign grantor  the  United  States  may  do  what  a  private  grantor  cannot  do, 
as  is  shown  by  the  fact  that  it  may  give  a  legal  fee  and  restrain  its  aliena- 
tion.    Smythe  v.  Henry  (C.  C.)  41  Fed.  705;    Farrington  v.  Wilson,  29  Wis. 
383. 

12  See  2  Lindley  on  Mines  (2d  Ed.)  §  571;    Montana  Min.  Co.  v.  St.  Louis 
Min.  &  Mill.  Co.,  102  Fed.  430,  42  C.  C.  A.  415 ;    EAST  CENTRAL  EUREKA 
MIN.  CO.  v    CENTRAL  EUREKA  MIN.  CO.,  204  U.  S.  266,  27  Sup.  Ct.  258, 
51  L   Ed.  476.     Because  the  dip  belongs  to  a  subsequent  locator  of  the  apex 
(COLORADO  CENT.  CONSOL.  MIN.  CO.  v.  TURCK,  50  Fed.  888,  2  C.  C.  A. 
C>7 ;    Id.,  54  Fed.  262,  4  C.  C.  A.  313 ;    CHEESMAN  v.  HART  [O.  C.]  42  Fed. 
98),  except,  perhaps,  where  the  first  location  is  based  on  a  discovery  on  the 
dip  (VAN  ZANDT  v    ARGENTINE  MIN.  CO.  [C.  C.]  8  Fed.  725;    but,  de- 
spite the  latter  case,  it  seems  that  on  principle  the  subsequent  locator  of  the 


408  SUBSURFACE    EIGHTS.  (Ch.  21 

full  protection  to  the  intralimital  right  owner,  as  against  mere  tres- 
passers, which  our  common-law  notions  of  ownership  demand.13  It 
should  always  be  remembered  that  the  common-law  property  right  doc- 
trines apply,  except  so  far  as  the  extralateral  right  doctrine  necessarily 
limits  their  application.14 

The  suggestion  that  a  locator  takes  everything  within  his  bound- 
ary lines,  subject  to  another's  right  to  acquire  the  fee  in  veins  dipping 
into  his  ground,  and  with  a  condition  in  the  nature  of  a  possibility  of 
reverter  in  his  favor  attached  to  every  such  acquisition  by  another, 
seems  to  meet  both  the  law  and  the  justice  of  the  situation,  and,  ex- 
cept in  the  case  of  known  lodes  in  placers,15  is  believed  to  represent 
the  outside  limitation  that  should  be  put  on  the  common-law  rights 
of  the  locator  or  patentee  of  mineral  land  through  which  a  vein  apex- 
ing  outside  dips.  In  the  case  of  known  lodes  in  placers  the  decision 
in  Reynolds  v.  Iron  Silver  Min.  Co.16  suggests  that  such  "known 
lodes"  may  be  worked  on  their  dip  by  those  who  do  not  own  the  apex ; 
but  it  is  believed  that  such  a  difference  between  lode  claims  and  plac- 

apex  should  get  all  of  the  dip,  see  note  26,  infra),  the  locator  or  patentee  of 
a  mining  claim  which  is  not  based  on  a  discovery  on  the  dip,  and  yet  em- 
braces part  of  the  dip  and  none  of  the  apex,  will  have  no  legal  right  to  work 
the  dip  deposit  within  the  claim's  boundaries  until  such  time  as  the  apex 
actually  is  located,  unless  some  such  analogy  as  is  here  suggested  is  adopt- 
ed. To  keep  mere  intruders  out  of  the  common-law  lines  of  the  location, 
and  yet  to  refrain  from  violating  real  property  conceptions,  should  be  the 
aim  of  the  cases,  and  the  analogy  offered  meets  all  the  needs  of  the  situa- 
tion. A  location  based  on  a  discovery  on  the  dip  of  a  vein  of  which  the 
apex  has  already  been  located  is,  of  course,  void  as  against  the  locator  of 
the  apex.  BUNKER  HILL,  ETC.,  CO.  v.  SHO SHONE  MIN.  CO.,  33  Land 
Dec.  Dep.  Int.  142. 

is  Messrs.  Morrison  and  De  Soto  have  intimated  that  any  middle  ground 
between  easement  and  exception  is  impossible.  Morrison's  Mining  Rights 
(13th  Ed.)  186. 

i*  "Except  as  modified  by  the  statute,  no  reason  is  perceived  why  one  who 
acquires  the  ownership  or  possession  of  such  lands  should  not  hold  them 
with  and  subject  to  the  incidents  of  ownership  and  possession  at  common 
law."  Doe  v.  Waterloo  Min.  Co.  (C.  C.)  54  Fed.  935.  See  Del  Monte  Mining 
&  Milling  Co.  v.  Last  Chance  Mining  &  Milling  Co.,  171  U.  S.  55,  66,  18  Sup. 
Ct.  895,  43  L.  Ed.  72. 

IB  In  REYNOLDS  v.  IRON  SILVER  MIN.  CO.,  116  U.  S.  687,  6  Sup.  Ct 
601,  29  L.  Ed.  774,  a  placer  patentee  was  not  allowed  to  recover  in  eject- 
ment against  the  defendants  who  were  working  a  lode  which  on  its  dip  con- 
stituted in  the  placer  a  "known  lode,"  and  the  reason  given  was  that  the  placer 
patentee  gets  "no  right  whatever"  in  known  lodes,  even  against  trespassers. 
Common-law  presumptions  and  analogies  based  on  them  may,  of  course,  be  in- 
applicable to  cases  of  statutory  exceptions ;  but  query  whether  they  are  inap- 
plicable in  the  case  of  excepted  "known  lodes"  in  placers? 

i«  116  U.  S.  687,  6  Sup.  Ct.  601,  29  L.  Ed.  774. 


§  114)  EXTRALATERAL   RIGHTS — APEXING    OF   VEIN.  409 

er  claims  is  of  doubtful  value  and  will  probably  not  be  continued  by 
the  United  States  Supreme  Court. 


EXTRALATERAL  BIGHTS  DEPENDENT  ON  THE  VEIN  APEXING 
IN  A  MINING  LOCATION. 

114.  Veins  which  apex  in  agricultural  grants  and  in  patented  town- 
sites  and  mill  sites  seemingly  have  no  extralateral  rights  at- 
tached to  them;  but  veins  which  apex  in  patented  placers, 
since  they  are  in  mining  claims,  would  seem  on  principle  to 
be  governed  by  the  extralateral  right  doctrine  if  the  claim's 
end  lines  are  parallel.  In  patented  placers,  however,  veins 
not  patented  to  the  placer  claimant  as  "known  lodes"  are 
supposed  by  many  not  to  be  within  the  extralateral  right 
doctrine. 

Veins  Apexing  in  Agricultural  Grants  and  in  Patented  Townsites. 

The  next  thing  to  notice  about  the  extralateral  right  doctrine  is  that 
by  the  federal  statute  extralateral  rights  are  given  only  to  "the  locators 
of  all  mining  locations."  17  It  would  therefore  seem  clear  that  the 
owner  of  an  agricultural  grant  may  not  follow  on  its  dip  a  vein  which 
he  discovers  apexing  in  his  land.  The  same  reason  will  also  apply- 
to  veins  apexing  in  patented  townsite  lots.  No  extralateral  rights 
attach  to  such  veins,  because  they  are  not  found  in  mining  locations. 

Veins  Apexing  in  Patented  Mill  Sites. 

Whether  the  extralateral  right  statute  applies  to  mil1  sites,  query? 
It  would  seem  clearly  not  to  apply  to  mill  sites  claimed  merely  by  the 
erection  and  use  of  mills  on  them ;  but  mill  sites  located  in  connection 
with  a  lode  may  be  in  a  different  situation.  That  such  a  mill  site  is  a 
mining  claim,  within  a  statute  excepting  mining  claims  from  a  town- 
site  patent,  has  been  held  in  one  case; 18  and  if  it  is  a  mining. claim 
within  the  townsite  act  it  is  possible  to  contend  that  it  is  a  mining  lo- 
cation within  the  extralateral  right  act.  The  fact  that  mill  sites  must 
be  nonmineral  would  seem,  however,  to  be  conclusive  proof  that  lodes 
discovered  in  them  after  patent  do  not  enjoy  extralateral  rights. 

Vein  Apexing  in  Patented  Placers. 

But  what  about  lodes  in  placers  not  known  to  be  there  until  aft- 
er the  application  for  placer  patent?  They  are  in  mining  locations, 
and  parallel  end  lines  normally  exist  in  placers.  Moreover,  what  was 
intended  to  be  an  end  line  can  often  be  ascertained  readily,  even  in 
those  cases  where  the  strike  of  the  vein  does  not  cross  opposite  lines 

if  Rev.  St.  U.  S.  §  2322  (U.  S.  Cornp.  St.  1901,  p.  1425). 
isHARTMAN  v.  SMITH,  7  Mont.  19,  14  Pac.  648. 


410  SUBSURFACE   RIGHTS.  (Ch.  21 

of  the  location.  Moreover,  such  veins  are  within  the  express  words  of 
the  extralateral  right  statute.  Yet  Mr.  Lindley,  with  seeming  approval, 
quotes  a  land  department  opinion  to  the  effect  that  "it  has  been  indis- 
putably settled,  and  is  admitted  by  protestants,  that  a  placer  claimant 
cannot  follow  a  vein  or  lode  beyond  the  surface  boundaries  of  his 
claim  extended  vertically  downward."  10 

Unless  this  departmental  decision  settles  it,  the  point  cannot  be  said 
to  be  indisputably  settled;  20  and  it  certainly  would  seem  on  principle 
that,  because  "known  lodes"  in  placers  may  carry  dip  rights,  all  lodes 
discovered  after  patent  should  also  have  them  whenever  the  require- 
ment of  parallel  end  lines  is  met,  and  such  rights  would  exist  on  "known 
lodes"  patented  as  such.  There  seems  to  be  no  case  on  the  subject, 
however,  other  than  this  departmental  decision,  and  in  that  the  shape 
of  the  placer  would  seem  properly  to  have  precluded  any  extralateral 
right.21  The  difficulty  of  discriminating  between  original  and  inci- 
dental "known  veins"  in  placers,  however,  will  probably  result  in  the 
adoption  of  the  land  department's  doctrine. 


EXTRALATERAL  RIGHTS  DEPENDENT  ON  IDENTITY,  CONTINU- 
ITY AND  DIP  OF  VEIN. 

115.  The  identity  and  substantial  continuity  of  the  vein  from  its 
apex  down  is  essential  to  the  existence  of  extralateral  rights 
on  the  vein,  and  there  are  no  extralateral  rights  unless  the 
vein  has  an  apex  and  a  dip. 

Growing  out  of  the  intralimital  rights  of  a  locator  or  patentee  — 
that  is,  out  of  his  common-law  rights,  so  far  as  they  are  not  neces- 
sarily impaired  by  the  American  mining  law  —  is  the  first  difficulty 
in  the  way  of  the  extralateral  right  claimant.  Not  only  must  he  own 
a  claim  which  contains  the  apex  of  a  vein,  and  which  has  its  end  lines 
so  directed  that  the  projected  extralateral  right  planes  will  embrace 
the  ore  body  in  controversy,  but  the  vein  of  which  he  owns  the  apex 
must  be  identified  as  the  one  the  dip  of  which  he  is  seeking  to  work, 

i»  WOODS  v.  HOLDEN,  26  Land  Dec.  Dep.  Int.  198,  205,  206.  The  opin- 
ion says:  "There  is  no  claim  that  the  existence  of  the  lode  was  known  at 
the  time  of  the  Mt.  Rosa  placer  entry  or  patent."  Id. 

20  But  see  2  Lindley  on  Mines,  §  619. 

21  It  is,  of  course,  true  that  where  a  patent  is  issued  for  a  placer,  "ex- 
cepting and  excluding    *    *     *     all  that  portion  of  the  surface  ground  here- 
in described  which  is  embraced"  by  a  certain  named  lode  claim,  the  placer 
patentee  does  not  get  title  to  the  veins  and  lodes  which  apex  beneath  the 
excepted  surface,  for  both  the  surface  area  in  conflict  and  all  veins  apexing 
beneath  it  are  carved  out  of  the  placer  grant  by  the  exception.     Lellie  Lode 
Mining  Claim,  31  Land  Dec.  Dep.  Int.  21. 


§  115)         EXTRALATERAL   RIGHTS — IDENTITY,  ETC.,  OF   VEIN.  411 

and  must  in  its  nature  be  such  a  vein  in  continuity  as  to  justify  the 
exercise  of  the  dip  right.  The  identity  and  continuity  of  the  vein  on 
its  strike  is  as  essential  to  the  proof  as  is  its  identity  and  continuity 
on  its  dip ; 22  but  as  to  the  strike  it  seems  that,  when  once  the  exist- 
ence of  its  apex  within  the  claim  is  established,  it  is  presumed  that 
the  lode  extends  the  full  length  of  the  claim.23  As  to  the  dip  right, 
on  the  other  hand,  it  must  be  remembered  that  a  lode  which  will  sup- 
port a  location  will  not  necessarily  carry  a  dip  right  and  that  not  only 
does  no  presumption  in  favor  of  dipping  exist,  but  the  presumption 
is  against  dipping. 

A  miner's  location  may  well  be  upheld  because  the  mineralization 
justified  a  reasonable  expectation  of  finding  ore  and  the  mineraliza- 
tion was  in  the  form  of  a  lode  deposit,  and  yet  no  extralateral  right 
be  deemed  to  exist  because  before  the  locator  can  descend  on  the  vein 
into  another  man's  ground  he  must  show  that  he  has  a  clearly  defined 
and  substantially  continuous  vein24  and  because  the  vein  in  the  given 
case  does  not  meet  that  test.  To  uphold  a  location  a  practical  miner's 

22  See  Pennsylvania  Consol.  Min.  Co.  v.  Grass  Valley  Exploration  Co.  (C. 
C.)  117  Fed.  509. 

2  3  Armstrong  v.  Lower,  6  Colo.  393,  399,  581,  586;  WAKEMAN  v.  NOR- 
TON, 24  Colo.  192,  49  Pac.  283.  This  presumption  applies  even  to  the  case 
of  a  lode  within  a  placer.  SAN  MIGUEL  CONSOL.  GOLD  MIN.  CO.  v. 
BONNER,  33  Colo.  207,  79  Pac.  1025.  A  patent  purporting  .to  describe  the 
course  and  direction  of  the  vein  is  not  conclusive  on  that  question.  CON- 
SOLIDATED WYOMING  GOLD  MIN.  CO.  v.  CHAMPION  MIN.  CO.  (C.  C.) 
63  Fed.  540.  The  presumption  in  each  case  yields  to  proof  of  the  actual 
situs  of  the  apex.  Montana  Ore  Purchasing  Co.  v.  Boston  &  M.  Consol. 
Copper  &  Silver  Min.  Co.,  27  Mont  288,  536,  70  Pac.  1114,  71  Pac.  1005. 

24  "What  may  constitute  a  sufficient  discovery  to  warrant  a  location  of 
a  claim  may  be  wholly  inadequate  to  justify  the  locator  in  claiming  or  ex- 
ercising any  rights  reserved  by  the  statutes.  What  constitutes  a  discovery 
that  will  validate  a  location  is  a  very  different  thing  from  what  constitutes 
an  apex  to  which  attaches  the  statutory  right  to  invade  the  possession  of, 
and  appropriate  the  property  which  is  presumed  to  belong  to,  an  adjoining 
owner.  The  question  of  a  sufficient  discovery  of  a  vein,  or  of  the  validity 
of  a  notice  of  location,  *  *  *  is  substantially  different  from  one  relating 
to  the  continuity  of  a  vein  on  its  dip  from  the-  apex,  and  which  tests  the 
rights  of  the  undisputed  owner  of  the  surface  to  what  lies  underneath  and 
within  his  own  boundaries.  It  is  the  object  and  policy  of  the  law  to  en- 
courage the  prospector  and  miner  in  their  efforts  to  discover  the  hidden 
treasures  of  the  mountains,  and  therefore,  as  between  conflicting  lode  claim- 
ants, the  law  is  liberally  construed  in  favor  of  the  senior  location ;  but 
where  one  claims  what  prima  facie  belongs  to  his  neighbor,  because  of  an 
apex  in  the  claimant's  location,  a  more  rigid  rule  of  construction  against 
the  claimant  prevails,  and,  as  we  have  already  observed,  he  has  the  burden 
to  show,  not  merely  that  the  vein  on  its  dip  may  include  the  ore  bodies  in 
the  adjoining  ground,  but  that  in  fact  it  does  so  include  them.  Until  he 
establishes  such  fact  beyond  reasonable  controversy,  he  has  no  rights  out- 


412  SUBSURFACE    EIGHTS.  (Cll.  21 

reasonable  expectations  are  justly  given  weight,  but  to  sustain  a  claim 
of  extralateral  right  the  actual  proof  that  the  vein  sought  to  be  pur- 
sued has  gone  into  the  other  man's  territory  must  be  made  out.25  For 
instance,  it  has  been  held  that  a  location  on  the  dip  of  a  vein  is  valid, 
and  will  prevail  as  to  the  segment  of  the  lode  within  its  surface  bound- 
aries extended  down,  even  against  the  subsequent  locator  of  the 
apex; 26  but  under  the  statute  only  the  owner  of  an  apex  has  extra- 
lateral  rights,  and  a  subsequent  locator  on  the  dip  therefore  has  none.27 
And  even  where  one  locates  an  apex  he  may  have  no  dip  rights  because 
of  lack  of  continuity. 

In  tracing  a  vein  from  its  apex  down  one  may  fix  his  attention 
on  the  vein  matter  or  on  the  vein  walls.28  The  Utah  court  has  point- 
ed out  that  in  all  definitions  of  a  vein  or  lode  "the  essential  elements 
of  a  vein  are  mineral  or  mineral-bearing  rock  and  boundaries,"  29  and 
that,  if  either  is  present,  very  slight  evidence  of  the  other  will  do. 

side  his  side  lines  in  another's  ground."  GRAND  CENTRAL  MIN.  CO.  v. 
MAMMOTH  MIN.  CO.,  29  Utah,  490,  576,  83  Pac.  648,  677.  See  CIIEES- 
MAN  v.  SHREEVE  (C.  C.)  40  Fed.  787. 

2  5  "When  it  is  said  that  a  location  may  be  sustained  by  the  discovery  of 
mineral  deposits  of  such  value  as  to  at  least  justify  the  exploration  of  the 
lode  in  the  expectation  of  finding  ore  sufficiently  valuable  to  work,  it  is  a 
very  different  question  from  telling  a  jury  that  the  geological  fact  of  the 
continuity  of  a  vein  to  a  certain  point  may  be  determined  by  what  a  prac- 
tical miner  might  do  in  looking  for  some  hoped-for  continuity."  FITZGER- 
ALD v.  CLARK,  17  Mont.  100,  136,  42  Pac.  273,  284,  30  L.  R.  A.  803,  52  Am. 
St.  Rep.  665.  Even  the  opinion  of  an  expert  that,  if  the  vein  continued  to 
dip  as  it  started,  it  would  dip  under  the  adjoining  land,  is  not  enough  to 
overcome  the  presumption  that  the  adjoining  landowner  has  title  to  every- 
thing within  his  boundaries  extended  downward.  Heinze  v.  Boston  &  M. 
Oo'nsol.  Copper  &  Silver  Min.  Co.,  30  Mont.  484,  77  Pac.  421.  But  actual 
proof  of  identity  and  continuity  will,  of  course,  overcome  that  presumption. 
MONTANA  ORE  PURCHASING  CO.  v.  BOSTON  &  M.  CONSOL.  COPPER 
&  SILVER  MIN.  CO.,  27  Mont.  288,  536,  70  Pac.  1114,  71  Pac.  1005. 

26  VAN  ZANDT  v.  ARGENTINE  MIN.  CO.  (C.  C.)  8  Fed.  725.     But  query? 
Compare  Hope  Mining  Co.  v.  Brown,  7  Mont.  550,  19  Pac.  218.     The  subse- 
quent locator  of  the  apex  has  a  valid  location,  of  course.     Eilers  v.  Boart- 
man,  3  Utah,  159,  2  Pac.  66.     And  on  principle  the  locator  on  the  dip  has 
a  valid  location  only  until  the  location  of  the  apex,  which  carries  with  it 
the  dip  covered  by  the  dip  location.     Since,  however,  VAN  ZANDT  v.  AR- 
GENTINE MIN.  CO.  (C.  C.)  8  Fed.  725,  works  out  a  just  result,  even  though 
it  is  an  illogical  one,  it  may  possibly  be  followed.     But  see  Larkin  v.  Upton, 
144  U.  S.  19,  21,  12  Sup.  Ct.  614,  36  L.  Ed.  330. 

27  Hallett,  J.,  in  IRON  SILVER  MIN.  CO.  v.  MURPHY  (D.  C.)  3  Fed.  308. 
The  only  possible  qualification  of  this  statement  would  seem  to  be  contained 
in  the  doctrine  of  theoretical  apex  hereafter  discussed.     See  118m. 

28  See  Leadville  Co.  v.  Fitzgerald  (U.  S.)  Fed.  Gas.  No.  8,158. 

29  GRAND  CENTRAL  MIN.   CO.  v.  MAMMOTH  MIN.  CO.,  29  Utah,  575, 
83  Pac.  677. 


§  115)         EXTRALATERAL   RIGHTS — IDENTITY,  ETC.,  OF   VEIN.  413 

Indeed,  the  two  may  vary  from  time  to  time,  thereby  causing  the 
need  of  distinguishing  between  identity  and  continuity. 

Distinction  between  Identity  and  Continuity  of  Vein. 

Identity  may  exist,  although  the  continuity  of  the  vein  matter  or 
of  the  walls  is  broken  from  time  to  time.30  But,  where  there  are  no 
defined  walls  to  the  vein,  then  the  identity  of  the  vein  for  extralateral 
right  purposes  would  seem  not  to  exist,  unless  the  value  of  the  vein 
matter  is  sufficient  to  distinguish  it  from  the  country  rock.31'  It  is 
identity,  rather  than  continuity,  that  is  essential  in  the  extralateral 
right  cases.82  While,  to  establish  the  extralateral  right,  the  owner  of 
the  apex  must  show  that  the  lode  is  continuous  and  in  place  throughout 
its  whole  course,  from  its  origin  in  his  own  ground  to  the  place  beyond 
in  which  he  claims  it,33  by  continuous  is  meant  that  the  vein  "can  be 
traced  through  the  surrounding  rocks,  though  slight  interruptions  of 
the  mineral-bearing  rock  would  not  be  alone  sufficient  to  destroy  the 
identity  of  the  vein.  Nor  would  a  short  partial  closure  of  the  fissure 
have  that  effect,  if  a  little  farther  on  it  occurred  again  with  mineral- 
bearing  rock  within  it."  84  It  is  not  required  that  the  owner  of  the 
apex  establish  the  identity  of  the  vein  by  an  actual  tracing  of  it  down 
to  and  including  the  disputed  ore  deposit ;  but  it  is  enough  that  suffi- 
cient continuity  to  identify  be  established  by  satisfactory  evidence.35 

so  "Identity  must  always  exist.  *  *  *  It  may  be  said  to  include  a  vein 
that  is  incessant.  But  a  vein  that  is  incessant  or  identical  in  its  parts  is 
not  necessarily  a  vein  which  is  continuous,  in  the  sense  that  the  continuity 
or  union  of  its  parts  is  absolute  and  uninterrupted.  In  other  words,  though 
a  continuity  of  vein  does  not  preclude  identity  of  vein,  yet  identity  does  not 
necessarily  include  continuity.  *  *  *  In  this  discussion,  however,  we  do 
not  mean  to  exclude  the  need  of  a  continuity  sufficient  to  preserve  identity. 
Nevertheless  there  may  be  an  identical  vein,  although  ore  is  found  at  con- 
siderable intervals  and  in  small  quantities,  if  the  boundaries  constituting  the 
fissure  are  well-defined."  BUTTE  &  B.  MIN.  CO.  v.  SOCIETE  ANONYME 
DES  MINES  DE  LEXINGTON,  23  Mont.  177,  58  Pac.  Ill,  75  Am.  St.  Rep. 
505.  See  Pennsylvania  Consol.  Min.  Co.  v  Grass  Valley  Exploration  Co.  (C. 
C.)  117  Fed.  509. 

si  GRAND  CENTRAL  MIN.  CO.  v.  MAMMOTH  MIN.  CO.,  29  Utah,  575, 
576,  83  Pac  677.  See  BUNKER  HILL  &  SULLIVAN  MINING  &  CON- 
CENTRATING CO.  v.  EMPIRE  STATE-IDAHO  MINING  &  DEVELOPING 
CO.  (C.  C.)  134  Fed.  268. 

32  IRON  SILVER  MIN.  CO.  v.  CHESSMAN,  116  U.  S.  529,  6  Sup.  Ot.  481. 
29  L.  Ed.  712;  Pennsylvania  Consol.  Min.  Co.  v.  Grass  Valley  Exploration 
Co.  (C.  C.)  117  Fed.  509. 

ss  Leadville  Min.  Co.  v.  Fitzgerald,  4  Morr.  Min.  Rep.  (U.  S.)  380,  Fed. 
Cas.  No.  8,158.  See  Stevens  v.  Gill,  1  Morr.  Min.  Rep.  (U.  S.)  576,  Fed. 
Cas.  No.  13,398. 

34  IRON  SILVER  MIN.  CO.  v.  CHEESMAN,  116  U.  S.  529,  538,  6  Sup. 
Ct  481,  485.  29  L.  Ed.  712. 

85DAGGETT  v.  YREKA  MIN.  &  MILL.  CO.,   149  Cal.  357,  86  Pac.  968. 


414  SUBSURFACE   RIGHTS.  (Ch.   21 

Extralateral  Rights  Dependent  on  the  Dipping  of  the  Vein. 

For  extralateral  rights  to  exist  there  must  be  both  a  vein  with  an 
apex  in  the  location  and  a  dipping  of  that  vein  beyond  the  side  lines 
of  the  location.  If  that  situation  exists,  and  the  end  lines  are  parallel, 
and  the  vein  on  its  strike  cuts  across  at  least  one  of  the  end  lines,  ex- 
tralateral rights  exist,  even  though  the  ground  be  patented  and  the  pat- 
ent does  not  mention  such  rights.36  There  is,  of  course,  no  extralateral 
right  on  the  strike  of  the  vein.87  If  a  vein  descends  from  the  plane 
of  the  horizon,  though  the  angle  be  Very  slight,  it  departs  "from  a 
perpendicular"  within  the  meaning  of  Rev.  St.  U.  S.  §  2322  (U.  S. 
Comp.  St.  1901,  p.  1425),  the  extralateral  right  statute.38  A  vein  which 
does  not  descend  from  the  horizon  is  a  blanket  vein,  and  has  no  dip 
rights,  for  the  reason  that  its  whole  upper  surface  is  really  its  apex 
strike,39  and  to  allow  extralateral  rights  would  be  to  allow  them  on  the 
strike  of  the  vein.40  While  blanket  veins  must  be  located  as  lodes, 
and  not  as  placers,41  they  do  not  enjoy  extralateral  rights.42 

See  Fitzgerald  v.  dark,  17  Mont.  100,  42  Pac.  273,  30  L.  R.  A.  803,  52  Am. 
St.  Rep.  665.  Evidence  that  the  vein  is  not  continuous  is  proper  rebuttal  by 
the  opposite  party.  Anaconda  Copper  Min.  Co.  v.  Heinze,  27  Mont.  161,  69 
Pac.  909. 

se  Doe  v.  Waterloo  Min.  Co.  (C.'  C.)  54  Fed.  935. 

ST  SOUTHERN  NEVADA  GOLD  &  SILVER  MIN.  CO.  V.  HOLMES  MIN. 
CO.,  27  Nev.  107,  73  Pa-c.  759,  103  Am.  St.  Rep.  759;  COLORADO  CENT. 
CONSOL.  MIN.  CO.  v.  TURCK,  50  Fed.  888,  2  C.  C.  A.  67;  McCormick  v. 
Varnes,  2  Utah,  355;  Tombstone  Mill.  &  Min.  Co.  v.  Way  Up  Min.  Co.,  1 
Ariz.  426,  25  Pac.  794.  In  LARNED  v.  JENKINS,  113  Fed.  634,  51  C.  C. 
A.  344,  it  is  pointed  out  that  this  rule  applies  under  the  act  of  1866  (Act 
July  26,  1866,  c.  262,  14  Stat.  251),  as  well  as  under  that  of  1872  (Act  May 
10,  1872,  c.  152,  17  Stat.  91).  In  regard  to  end  lines  under  the  act  of  1866, 
see  Pilot  Hill  and  Other  Lodes,  35  Land  Dec.  Dep.  Int.  592,  593. 

ssLeadville  Min.  Co.  v.  Fitzgerald  (U.  S.)  4  Morr.  Min.  Rep.  (U.  S.)  380, 
Fed.  Cas.  No.  8,158 ;  Stevens  v.  Williams  (U.  S.)  Fed.  Cas.  No.  13,414. 

3»  Homestake  Min.  Co.,  29  Land  Dec.  Dep.  Int  689.  See  Leadville  Min. 
Co.  v.  Fitzgerald,  supra. 

40  See  GILPIN  v.  SIERRA  NEVADA  CONSOL.  MIN.  CO.,  2  Idaho  (Hasb.) 
23  Pac.   547,   1014.     Even  where,   as   in  the  case  of  the   Leadville  ore  de- 
posits, a  blanket  vein  undulates  so  that  it  lies  in   the  shape  of  waves  of 
water,  there  is  no  apex  of  the  vein,  but  only  apexes  of  folds  of  the  vein. 
1  Lindley  on  Mines  (2d  Ed.)  §  312.     The  Leadville  juries,  which  refused  to 
find   that  the  Leadville  veins   have  apexes,   hardly   deserve  the   blame  Mr. 
Snyder  gives  them.     1  Snyder  on  Mines,  §  802. 

41  IRON  SILVER  MIN.  CO.  v.  MIKE  &  STARR  GOLD  &  SILVER  MIN. 
CO.,  143  U.  S.  394,  400,  430,  12  Sup.  Ct.  543,  36  L.  Ed.  201 ;    IRON  SILVER 
MIN.  CO.  v.  CAMPBELL,  17  Colo.  274,  29  Pac.  513. 

42  The  case  of  DUGGAN  v.  DAVEY,  4  Dak.  110,  26  N.  W.  887,  is  under- 
stood by  Messrs.  Morrison  and  De  Soto  to  hold  that  an  8°  vein  has  no  apex 
(Morrison's  Mining  Rights  [13th  Ed.]  170);    but  it  seems,  instead,  simply  to 
have  held  that,  while  there  was  an  apex,  the  location  which  claimed  to  have 


117)  EXTRALATERAL  RIGHTS   UNDER  ACT  OF  18G6.  415 


EXTRALATERAL    RIGHTS    AND    THE    RIGHT    TO    CROSS    CUT 
THROUGH  ANOTHER'S  LAND. 

116.  Extralateral  rights  must  be  exercised  by  going  down  on  the 
vein  in  its  extralateral  pursuit,  and  do  not  include  the  right 
to  cross  cut  through  another's  land. 

It  seems  almost  unnecessary  to  say  that  extralateral  rights  must  be 
exercised  by  going  down  on  the  vein.  There  is  no  right  in  the  apex 
owner  to  tunnel  through  the  laterally  adjoining  patented  or  unpatented 
claim  in  order  to  cut  the  vein.*3 


EXTRALATERAL  RIGHTS  UNDER  THE  ACT  OF  1866. 

117.   Under  the  act  of  1866  parallelism  of  end  lines  was  not  essential 
to  extralateral  rights. 

Where  the  end  lines  converge  on  the  dip,  extralateral  rights  are. 
measured,  under  the  act  of  1868,  by  extending  those  lines  till 
they  meet.  "Where  end  lines  cannot  be  found,  or  the  end  lines. 
diverge  on  the  dip,  planes  are  drawn  parallel  to  each  other, 
through  the  point  where  the  vein  departs  from  the  location 
and  at  right  angles  to  the  general  course  of  the  vein  through 
the  location,  and  the  extralateral  rights  are  measured  by 
those  planes. 

Under  the  act  of  1866,  as  well  as  under  the  act  of  1872,  there  were 
extralateral  rights ;  but  under  the  act  of  1866,  unlike  the  act  of  1872, 
parallelism  of  end  lines  was  not  essential.44  The  question  of  extra- 

the  apex  was  in  fact  upon  an  outcrop  of  the  dip.    1  Lindley  on  Mines  (2d 
Ed.)  §  310. 

43  St.  Louis  Min.  &  Mill   Co.  of  Montana  v.  Montana  Min.  Co.,  113  Fed.  900, 
51  C.  C.  A.  530,  64  L.  R.  A.  207,  194  U.  S.  235,  24  Sup.  Ct.  654,  48  L.  Ed,  953. 
See  Patten  v.  Conglomerate  Min.  Co.,  35  Land  Dec.  Dep.  Int.  617. 

44  "Under  the  act  of  1866  (Act  July  26,  1866,  c.  262,  14  Stat  251)  parallel- 
ism in  the  end  lines  of  a  surface  location  was  not  required."    IRON  SILVER 
MIN.  CO.  v.  ELGIN  MINING  &  SMELTING  CO.,  118  U.  S.  196,  208,  6  Sup. 
Ct.   1177,  30  L.   Ed.  98.     Even  under  that  act  the  right  to  the  strike  was 
limited  by  the  inclosing  lines  of  the  location  and  extralateral  rights  were 
regulated   accordingly.    Davis  v.   Shepherd,  31  Colo.   141,   147,   72   Pac.  57; 
Wolfiey  v.  Lebanon  Min.  Co.,  4  Colo.  112;    Walrath  v.  Champion  Min.  Co., 
171  U.  S.  293,  18  Sup.  Ct.  909,  43  L.  Ed.  170.     End  lines  need  not  be  parallel 
in  the  case  of  a  claim  which  was  located  under  the  act  of  1866  (Act  July 
26,  1866,  c.  262,  14  Stat.  251),  and  which  had  so  far  advanced  to  patent  at 
the  time  the  act  of  1872  (Act  May  10,  1872,  c.  152,  17  Stat.  91)  was  passed 
that  adverse  claims  were  excluded.     EAST  CENTRAL  EUREKA  MIN.  CO. 
v.  CENTRAL  EUREKA  MIN.  CO.,  204  U.  S.  266,  27  Sup.  Ct.  258,  51  L.  Ed. 
476.     See  ARGONAUT  MIN.  CO.  v.  KENNEDY  MIN.  &  MIi,L.  CO.,  131  Cal. 
15,  63  Pac.  148,  82  Am.  St.  Rep.  317. 


416  SUBSURFACE   EIGHTS.  (Ch.  21 

lateral  rights  under  that  earlier  act  arises  chiefly  in  the  case  of  claims 
patented  under  it  with  irregular  forms.  This  includes  patents  issued 
subsequently  to  1872  on  applications  pending  prior  to  the  passage  of 
the  act  of  1872;  and  under  all  such  patents  parallelism  of  end  lines 
is  not  essential  to  the  existence  of  extralateral  rights.45  That  paral- 
lelism of  end  lines  in  locations  made  under  that  act  may  affect  extra- 
lateral  rights  in  secondary  veins,  however,  is  settled  by  Walrath  v. 
Champion  Min.  Co.48 

Where  the  end  lines  of  a  claim  patented  under  the  act  of  1866 
converge  on  the  dip,  it  seems  to  be  unquestioned  that  the  extralateral 
rights  are  computed  by  extending  the  end  lines  to  their  point  of  con- 
vergence. The  situation  is  shown  in  Figure  No.  13.*7 

FIGURE  No.13.  ,  FIGURE  No. Jf. 


_Vcm 


\ /   1 


/  I      DISCOVERY  VEIN  \ 


While  the  cases  so  deciding  are  uniform,48  it  is  difficult  to  see  why, 
under  the  act  of  1866,  where  no  requirement  of  parallel  end  lines  ex- 
isted, a  claim  with  converging  end  lines  should  not  have  .  the  same 
dip  rights  as  a  claim  with  diverging  end  lines.49  It  was  obviously 

45  17  Stat.  94,  c.  152,  §  9;    Eclipse  Gold  &  Silver  Min.  Co.  v.  Spring,  59  Cal. 
304;    ARGONAUT   MIN.   CO.   v.   KENNEDY   MIN.   &  MILL.   CO.,   131   Cal. 
15,  63  Pac.  148,  82  Am.  St.  Rep.  317;    New  Dunderberg  Min.  Co.  v.  Old,  79 
Fed.  598,  25  C.  C.  A.  116;    Central  Eureka  Min.  Co.  v.  East  Central  Eureka 
Min.   Co.,   146  Cal.   147,   79   Pac.   834,  9  L.   R.   A.    (N.   S.)  940;    EAST  CEN- 
TRAL EUREKA   MIN.    CO.   v.    CENTRAL  EUREKA  MIN.   CO.,  204  U.    S. 
266,  27  Sup.  Ct.  258,  51  L.  Ed.  476. 

46  171  U.  S.  293,  18  Sup.  Ct.  909,  43  L.  Ed.  170. 

47  The  arrow  indicates  the  direction  of  the  dip. 

48  CARSON   CITY   GOLD  &   SILVER  MIN.   CO.   v.   NORTH   STAR  MIN. 
CO.  (C.  C.)  73  Fed.  597;    Consolidated  Wyoming  Gold  Min.  Co.  v.  Champion 
Min.    Oo.    (C.    C.)    63   Fed.   540;     Central    Eureka   Min.   Co.   v.   East  Central 
Eureka  Min.  Co.,  146  Cal.  147,  79  Pac.  834,  9  L.  R.  A.  (N.  S.)  940. 

49  See  Morrison's  Mining  Rights  (13th  Ed.)  173. 


§  118)  EXTRALATERAL    RIGHTS   UNDER   ACT   OF  1872.  417 

intended  under  that  act  that  the  length  of  the  apex  owned  should  be 
the  length  taken  all  the  way  down  to  the  center  of  the  earth.50 

Where  the  end  lines  diverge  on  the  dip,  as  in  Figure  No.  14,  supra, 
it  seems  clear  that  Congress  could  not  have  intended  the  end  lines 
extended  to  measure  the  right.  Such  a  measure  for  extralateral  rights 
would  allow  a  locator  so  to  shape  his  claim  as  to  take  in  the  dip  of  a 
vein  for  miles  of  its  underground  length.  Since  extralateral  rights 
could  not  be  denied,  because  of  the  shape  of  the  claim,  some  other 
measure  had  to  be  sought,  and  that  measure  was  found  by  drawing 
end  lines  at  the  extremities  of  the  strike  of  the  vein  within  the  location 
lines ;  the  end  lines  so  drawn  being  parallel  to  each  other  and  at  right 
angles  to  the  general  course  of  the  vein  through  the  location.51 

Figure  No.  14  represents  the  method  of  determining  dip  rights  un- 
der the  act  of  1866,  where  the  end  lines  diverge  on  the  dip.  Where 
no  end  lines  can  be  worked  out,  the  rule  just  applied  to  diverging  end 
lines  would  apply. 

It  has  been  held  that  under  the  act  of  1866  a  consolidated  claim 
is  entitled  to  extralateral  rights  based  on  its  exterior  boundaries,  re- 
gardless of  the  interior  lines  which  formed  the  boundaries  of  the 
original  claim  so  consolidated.52 

EXTRALATERAL  RIGHTS  UNDER  THE  ACT  OF  1872. 

118.  The  extralateral  rights  under  the  act  of  1872  differ  from  those 
under  the  act  of  1866  chiefly  in  the  effect  of  the  requirement 
in  the  act  of  1872  that  the  end  lines  of  a  mining  claim  must 
be  parallel. 

The  extralateral  right  section  of  the  act  of  1872  is  as  follows: 
"The  locators  of  all  mining  locations  *  *  *  shall  have  the 
exclusive  right  of  possession  and  enjoyment  of  all  the  surface  includ- 
ed within  the  lines  of  their  locations,  and  of  all  veins,  lodes,  and  ledges 
throughout  their  entire  depth,  the  top  or  apex  of  which  lies  inside  of 
such  surface  lines  extended  downward  vertically,  although  such  veins, 

BO  See  EUREKA  CONSOL.  MIN.  CO.  v.  RICHMOND  MIN.  CO.,  4  Sawy.  (U. 
S.)  302,  Fed.  Gas.  No.  4,548,  affirmed  in  Richmond  Min.  Co.  of  Nevada  v. 
Eureka  Consolidated  Min.  Co.,  103  U.  S.  839,  26  L.  Ed.  557. 

si  ARGONAUT  MIN.  CO.  v.  KENNEDY  MIN.  &  MILL.  CO.,  131  Cal.  15, 
63  Pac.  148,  82  Am.  St.  Rep.  317,  decided  on  another  ground  in  Kennedy  Min- 
ing &  Milling  Co.  v.  Argonaut  Mining  Co.,  189  U.  S.  1,  23  Sup.  Ct  501,  47 
L.  Ed.  685;  Eureka  Case,  4  Sawy.  (U.  S.)  302,  Fed.  Cas.  No.  4,548. 

52  CARSON  CITY   GOLD  &   SILVER  MIN.  CO.  V.   NORTH  STAR   MIN. 
CO.  (C.  C.)  73  Fed.  598;    Id.,  83  Fed.  658,  28  C.  C.  A.  333.     But  under  Act 
May  10,  1872,  c.  152,  17  Stat.  91,  this  seems  not  to  be  so.     Del  Monte  Mining 
&  Milling  Co.  v.  New  York  &  L.  C.  Min.  Co.  (C.  C.)  66  Fed.  212. 
COST.  MIN.  L.— 27 


418  SUBSURFACE   RIGHTS.  (Ch.  21 

lodes,  or  ledges  may  so  far  depart  from  a  perpendicular  in  their  course 
downward  as  to  extend  outside  the  vertical  side  lines  of  such  surface 
locations.  But  their  right  of  possession  to  such  outside  parts  of  such 
veins  or  ledges  shall  be  confined  to  such  portions  thereof  as  lie  be- 
tween vertical  planes  drawn  downward  as  above  described,  through 
the  end  lines  of  their  locations,  so  continued  in  their  own  direction 
that  such  planes  will  intersect  such  exterior  parts  of  such  veins  or 
ledges.  And  nothing  in  this  section  shall  authorize  the  locator  or 
possessor  of  a  vein  or  lode  which  extends  in  its  downward  course  be- 
yond the  vertical  lines  of  his  claim  to  enter  upon  the  surface  of  a 
claim 'owned  or  possessed  by  another."  Rev.  St.  U.  S,  §  2322  (U.  S. 
Comp.  St.  1901,  p.  1425). 

By  Rev.  St.  U.  S.  §•  2320  (U.  S.  Comp.  St.  1901,  p.  1424),  parallel 
end  lines  are  called  for  in  a  mining  location.  That  provision  is  read 
with  the  above  quoted  Rev.  St.  U.  S.  §  2322,  and  accordingly  the 
extralateral  rights  awarded  under  the  act  of  1872  differ  from  those 
under  the  act  of  1866  chiefly  in  the  effect  of  that  requirement  in 
the  act  of  1872  that  the  end  lines  of  the  claim  must  be  parallel.  The 
reason  for  and  the  effect  of  such  difference  must  now  be  stated. 


SAME-PARALLELISM  OF  END  LINES.     • 

118a.  Parallelism  of  end  lines  is  deemed  an  essential  prerequisite  of 
extralateral  rights  under  the  act  of  1872;  but  a  possible 
exception  is  where  the  end  lines,  extended  in  their  own  di- 
rection, converge  on  the  dip. 

In  the  act  of  1872  there  is  a  requirement  that  the  end  lines  of  min- 
ing locations  shall  be  parallel,53  though  that  provision  is  not  found  in 
the  extralateral  right  section.54  But  since  there  is  no  requirement 
that  the  side  lines  shall  be  parallel,  and  since  the  statute  contemplates 
a  location  along  the  strike  of  the  vein,  it  has  been  decided  that  the  re- 
quirement of  parallel  end. lines  is  for  the  purpose  of  bounding  the  un- 
derground extralateral  rights  which  the  owner  of  the  location  may  ex- 
ercise.56 The  result  is  that,  with  the  possible  exception  of  cases  where 
the  end  lines  converge  on  the  dip,  parallelism  of  end  lines  is  essential 

63  Rev.  St.  U.  S.  §  2320  (U.  S.  Comp.  St.  1901,  p.  1424). 

64  Rev.  St.  U.  S.  §  2322  (U.  S.  Comp.  St.  1901,  p.  1425). 

5 B  DEL  MONTE  MINING  &  MILLING  CO.  v.  LAST  CHANCE  MINING 
&  MILLING  CO.,  171  U.  S.  55,  18  Sup.  Ot.  55,  43  L.  Ed.  72.  To  give  extra- 
lateral  rights,  the  end  lines,  in  addition  to  being  parallel,  "must  be  straight 
lines,  not  broken  or  curved  ones"  WALRATH  v.  CHAMPION  MIN.  CO.,  171 
U.  S.  293,  311,  18  Sup.  Ct  909,  43  L.  Ed.  170. 


§  118a)  EXTRALATERAL   RIGHTS   UNDER   ACT    OF    1872.  419 

to  the  right  of  the  locator  or  patentee  to  follow  his  vein  outside  of  the 
common-law  limits  of  his  claim.  The  claim  itself  is  valid  if  the  end 
lines  are  not  parallel ;  but  in  such  case  it  has  not  the  extralateral  right 
feature.66  It  is  enough  to  give  extralateral  rights  if  the  end  lines  are 
substantially  parallel,67  and  it  seems  that  the  lines  of  the  location 
may  be  changed  and  proper  record  made,  so  as  to  acquire  extralateral 
rights,  even  though  prior  to  the  change  the  adjoining  ground  is  locat- 
ed.58 It  is  well  settled  that  a  locator  may  project  his  lines  over  a  pre- 
vious location  in  order  to  make  them  parallel  for  extralateral  right 
purposes,  provided  in  doing  so  he  does  not  have  to  make  forcible  en- 
try.69 Such  change  of  lines  may  be  made  even  after  patent  applied 
for.60  The  right  of  a  locator  or  patentee  to  veins  which  do  not  apex 
within  the  boundary  lines  of  his  location  is,  therefore,  one  which  a 
relocation  of  the  ground  containing  the  apex  or  an  amendment  of 
the  apex  location  may  defeat  under  circumstances  like  those  just  con- 
sidered. It  has  been  held  that  where  a  patent  describes  the  claim  as 
having  parallel  end  lines,  and  expressly  grants  extralateral  rights,  it 
cannot  be  shown,  to  defeat  extralateral  rights,  that  the  end  lines  were 
not  in  fact  parallel;  61  but  since  the  act  of  April  28,  1904,62  at  least,  it 
would  seem  to  be  clear  that  the  monuments  on  the  ground  must  control. 
The  end  lines  are  not  expressly  required  to  be  of  any  given  length,  but 

ea  IRON  SILVER  MIN.  CO.  v.  ELGIN  MINING  &  SMELTING  CO.,  118 
U.  S.  196,  6  Sup.  Ct  1177,  30  L.  Ed.  98;  Montana  Co.  v.  Clark,  42  Fed.  626. 
"There  is  liberty  of  surface  form  under  Act  May  10,  1872,  c.  152,  17  Stat. 
91."  Walrath  v.  Champion  Min.  Co.,  171  U.  S.  293,  312,  18  Sup.  Ct.  909,  43 
L.  Ed.  170.  The  notion  announced  in  the  Eureka  Case,  4  Sawy.  (U.  S.)  302, 
Fed.  Cas.  No.  4,548,  and  supported  by  Horswell  v.  Ruiz,  67  Cal.  Ill,  7  Pac. 
197  (compare,  also,  Doe  v.  Sanger,  83  Cal.  203,  23  Pac.  365),  that  the  re- 
quirement of  parallelism  "is  merely  directory,  and  no  consequence  is  attached 
to  a  deviation  from  its  direction,"  is  erroneous  so  far  as  extralateral  rights 
are  concerned,  but  it  is  perfectly  true  as  regards  intralimital  rights. 

67  CHEESMAN  v.  SHREEVE  (O.  C.)  40  Fed.  787,  792;    DOE  v.  SANGER, 
83  Cal.  203,  23  Pac.  365.     See  MeElligott  v.  Krogh,  151  Cal.  126,  90  Pac.  823. 
But  for  the  correction  of  the  location  by  making  the  end  lines  parallel,  the 
case  of  DOE  v.  SANGER  would  have  furnished  an  erroneous  application  of 
this  principle;    for  the  original  end  lines  were  far  from  being  substantially 
parallel. 

68  DOE  v.  SANGER,  supra. 

8 •  Davis  v.  Shepherd.  31  Colo.  141,  72  Pac.  57;  DEL  MONTE  MINING  & 
MILLING  CO.  v.  LAST  CHANCE  MINING  &  MILLING  CO.,  171  U.  S.  55, 
18  Sup.  Ct.  895,  43  L.  Ed.  72. 

oo  Last  Chance  Min.  Co.  v.  Tyler  Min.  Co.,  61  Fed.  557,  9  C,  C.  A.  613; 
Tyler  Min.  Co.  v.  Sweeney,  54  Fed.  284,  4  C.  C.  A.  329 ;  Doe  v.  Waterloo  Min. 
Co.  (C.  C.)  54  Fed.  935. 

6i  Waterloo  Min.  Co.  v.  Doe,  82  Fed.^45,  27  C.  C.  A.  50. 

«2  33  Stat.  545,  c.  1796  (U.  S.  Comp.'  St.  Supp.  1907,  p.  477). 


420  SUBSURFACE   EIGHTS.  (Ch.  21 

the  land  department  declares  that  one  less  than  three  inches  long  can- 
not be  considered.83 

For  end  lines  to  meet  the  test  of  parallelism  required  for  extra- 
lateral  right  purposes,  they  must  be  straight.  They  cannot  be  broken, 
as  in  Figure  No.  15,  nor  curved,  as  in  Figure  No.  16.* 

FJGURE.NO.  1ST.  fmuRE.  No.  16. 


^DISCOVERY  VEIN       -  Disc  ovcgy. 

T        / 


The  dictum  to  this  effect  in  Walrath  v.  Champion  Min.  Co.  is  based 
on  the  common-sense  doctrine  that  it  is  impossible  to  extend  such 
lines  in  their  own  direction  to  fix  satisfactory  extralateral  right  bound- 
ing planes.  When  it  is  said  that  end  lines  must  be  parallel  to  give  ex- 
tralateral rights,  it  must  not  be  forgotten  that  where  the  location  is 
laid  across,  instead  of  along,  the  strike,  the  side  lines  become  for  ex- 
tralateral right  purposes  the  end  lines.64  What  this  means  will  be 
considered  later. 

Convergence  on  the  Dip. 

The  one  possible  case  under  the  act  of  1872  where  there  may  be 
extralateral  rights,  even  though  the  end  lines  are  not  parallel,  is  where, 
as  in  Figure  No.  13,  supra,  those  end  lines  converge  on  the  dip.65 

es  "The  department  is  of  opinion  that  a  line  less  than  three  inches  in 
length  is  not  within  the  spirit  or  intent  of  the  statute.  The  end  lines,  re- 
quired in  all  cases  to  be  parallel  to  each  other,  are  important  features  of 
a  vein  or  lode  location,  and  the  statute  clearly  contemplates  that  such  lines 
shall  have  substantial  existence  in  fact,  and  in  length  shall  reasonably  com- 
port with  the  width  of  the  claim  as  located."  Jack  Pot  Lode  Min.  Claim,  34 
Land  Dec.  Dep.  Int.  470,  471.  The  other  end  line  was  over  800  feet  long,  and 
the  claim  in  consequence  was  excessive.  Id.  For  a  similar  case,  see  Bellig- 
erent and  Other  Lode  Mining  Claims,  35  Land  Dec.  Dep.  Int.  22. 

*  WALRATH  v.  CHAMPION  MIN.  CO.,  171  U.  S.  293,  311,  18  Sup.  Ct 
909,  43  L.  Ed.  170. 

e*  FLAGSTAFF  SILVER  MIN.  CO.  OF  UTAH  v.  TARBET,  98  U.  S.  463, 
25  L.  Ed.  253;  ARGENTINE  MIN.  CO.  v.  TERRIBLE  MIN.  CO.,  122  U. 
S.  478,  7  Sup.  Ct.  1356,  30  L.  Ed.  1140;  KING  v.  AMY  &  SILVERSMITH 
CONSOL.  MIN.  CO.,  152  U.  S.  222,  14  Sup.  Ct  510,  38  L.  Ed.  419;  Parrot 
Silver  &  Copper  Co.  v.  Heinze,  25  Mont  139,  64  Pac.  326,  53  L.  R.  A.  491,  87 
Am.  St.  Rep.  386;  Southern  Nevada  Gold  &  Silver  Min.  Co.  v.  Holmes  Min. 
Co.,  27  Nev.  107,  73  Pac.  759,  103  Am.  St.  Rep.  759. 

65  The   giving  of   extralateral.  rights   within   fan-shaped    end    line   planes 


§  118a)  EXTRALATEKAL   RIGHTS   UNDER   ACT   OF  1872,  421 

Mr.  Lindley  insists  that  the  reasoning  in  favor  of  extralateral  rights 
where  end  lines  converge  on  the  dip  is  the  same  under  the  act  of  1872 
as  under  the  act  of  1866. 66  The  only  reason,  he  says,  why  parallelism 
of  end  lines  is  required  is  that  more  shall  not  be  had  of  the  dip  than 
can  be  claimed  of  the  apex,  and,  "where  the  reason  of  the  rule  ceases, 
the  rule  itself  should  cease."  67  Since  the  statutory  requirement  as 
to  end  lines  being  parallel  is  not  contained  in  the  extralateral  right 
section  of  the  statute — a  reason  which,  however,  Messrs.  Morrison 
and  De  Soto  properly  call  "the  weakest  of  all  reasons  in  statutory 
construction"  68 — and  since  no  principle  is  violated  by  awarding  ex- 
tralateral rights  where  there  is  convergence  on  the  dip,  Mr.  Lindley's 
contention  ought  to  prevail.  So  far  it  seems  to  be  supported  in  the 
cases  only  by  dicta69  and  by  concessions  of  counsel.70 

It  is  well  settled  that  in  order  to  get  extralateral  rights  the  lines  of 
a  junior  lode  location  may  be  laid  within,  upon,  or  across  the  surface 
of  a  valid  senior  location,  provided  that  no  forcible  entry  is  made.71 
The  same  thing  seems  to  be  true,  although  the  senior  location  is  patent- 
ed,72 and  on  principle  should  be  so.  The  extent  of  the  extralateral 

— I.  e.,  within  planes  which  diverged  as  they  were  extended — was  forbidden 
in  Hickey  v.  Anaconda  Copper  Min.  Co.,  33  Mont  46,  81  Pac.  806. 

«62  Lindley  on  Mines  (2d  Ed.)  pp.  981,  982,  §  582. 

«7ld. 

es  Morrison's  Mining  Rights  (13th  Ed.)  172. 

69  CARSON  CITY  GOLD  &  SILVER  MIN.  CO.  v.  NORTH  STAR  MIN. 
CO.,  83  Fed.  658,  28  C.  O.  A.  333. 

TO  BUNKER  HILL  &  SULLIVAN  MINING  &  CONCENTRATING  CO.  v. 
EMPIRE  STATE-IDAHO  MINING  &  DEVELOPING  CO.,  109  Fed.  538,  540, 
48  C.  C.  A.  665.  The  literal  construction  of  the  statute  is  impaired  by  the 
cases  which  make  the  side  lines  serve  as  end  lines  where  the  location  is 
laid  across  the  strike  of  the  vein. 

7i  DEL  MONTE  MINING  &  MILLING  CO.  v.  LAST  CHANCE  MINING 
&  MILLING  CO.,  171  U.  S.  55,  18  Sup.  Ct.  895,  43  L.  Ed.  72 ;  Davis  v.  Shep- 
herd, 31  Colo.  141,  72  Pac.  57.  The  failure  of  the  senior  locator  to  object 
makes  the  junior  location  valid  for  extralateral  right  purposes.  EMPIRE 
STATE-IDAHO  MINING  &  DEVELOPING  CO.  v.  BUNKER  HILL  &  SUL- 
LIVAN MINING  &  CONCENTRATING  CO.,  131  Fed.  591,  66  O.  C.  A.  99; 
Big  Hatchet  Consol.  Min.  Co.  v.  Colvin,  19  Colo.  App.  405,  75  Pac.  605. 
If  the  junior  locator  is  allowed  to  patent  the  conflict  area,  he  gets  the  extra- 
lateral  rights  which  go  with  the  conflict  area  in  priority  to  the  senior  lo- 
cator. BUNKER  HILL  &  SULLIVAN  MINING  &  CONCENTRATING  CO. 
v.  EMPIRE  STATE-IDAHO  MINING  &  DEVELOPING  CO.,  109  Fed.  538, 
48  C.  C.  A.  665.  Except  in  the  case  of  broad  veins  apexing  partly  within  two 
or  more  adjacent  lode  claims.  Lawson  v.  United  States  Min.  Co.,  207  U.  S. 
1,  28  Sup.  Ct.  15,  52  L.  Ed.  65. 

72Hidee  Gold  Min.  Co.,  39  Land  Dec.  Dep.  Int.  420;  BUNKER  HILL  & 
SULLIVAN  MINING  &  CONCENTRATING  CO.  v.  EMPIRE  STATE-IDAHO 
MINING  &  DEVELOPING  CO.  (C.  C.)  106  Fed.  471.  But  see  State  v.  Dis- 
trict Court,  25  Mont  572,  65  Pac.  1020. 


422 


SUBSURFACE   RIGHTS. 


(Ch.21 


rights  where  locations  conflict  will  be  discussed  later  in  connection  with 
the  Del  Monte  Case. 


The  Ideal  Location. 


FIGURE  No.17. 


VELM 


The  ideal  location  contemplated  by  the  statute  is  one  where  parallel 
end  lines  are  bisected  by  the  strike  of  the  vein  which  they  cross  at 
right  angles  and  the  strike  itself  passes  through  the  center  of  the  claim 
practically  parallel  with  the  side  lines.78  Such  a  location  is  represent- 
ed in  Figure  No.  17 ;  its  extralateral  rights  being  measured  by  extend- 
ing its  parallel  end  lines  in  the  direction  of  the  dip  and  dropping  the 
requisite  planes.7*  Departures  from  this  ideal  and  conflicts  with  the 
dip  rights  of  other  locations  cause  the  complications. 


f 


SAME— SIDE  LINES  AS  END  LINES. 


118b.  Where  the  discovery  (original  or  principal)  vein  crosses  both 
side  lines,  instead  of  going  out  of  the  end  lines  as  located, 
and  does  not  touch  an  end  line,  the  side  lines  become,  for  ex- 
tralateral right  purposes,  the  end  lines. 

When  the  apex  crosses  both  side  lines  and  does  not  touch  an  end 
line,  it  is,  as  has  already  been  pointed  out,  well  settled  that  for  extra- 

73  "There  can  be  no  arbitrary  or  ironclad  rule  to  govern  the  laying  of  end 
lines  in  all  cases  other  than  this:  They  must  be  straight  and  parallel  to  each 
other,  and  when  at  right  angles  with  the  side  lines  they  must  not  exceed  600 
feet  in  length."  Belligerent  and  Other  Lode  Mining  Claims,  35  Land  Dec. 
Dep.  Int.  22,  26. 

7*  See  Iron  Silver  Min.  Co.  v.  Elgin  Mining  &  Smelting  Co.,  118  U.  S.  196, 
6  Sup.  Ct.  1177,  30  L.  Ed.  98. 


§  118b) 


EXTRALATERAL   RIGHTS   UNDER  ACT  OF  1872. 


423 


lateral  right  purposes  the  side  lines  become  end  lines.75  There  is  a 
dispute,  however,  as  to  just  what  this  means.  It  is  clear  that  the  side 
lines  become  end  lines  sufficiently  to  defeat  any  right  of  the  owner  of 
the  claim  to  follow  the  vein  on  its  dip  beyond  them.78  But  Messrs. 
Morrison  and  De  Soto  insist  that,  while  the  side  lines  become  end 
lines  for  this  purpose,  they  do  not  become  end  lines  for  any  other  pur- 
pose, and  that,  even  though  they  are  parallel,  they  do  not  permit  any 
dip  right  beyond  the  bounding  planes  of  the  location.77 


FIGURE  No.  id. 


In  Figure  No.  18,  Messrs.  Morrison  and  De  Soto  would  allow  the 
locator  to  have  the  dip  as  shaded  within  the  claim's  boundaries,  but 
no  more.  In  other  words,  they  confine  the  locator  to  intralimital 
rights.  But  the  same  reason  which  justifies  calling  the  side  lines  end 
lines  necessitates  calling  the  end  lines  side  lines,  and,  if  the  end  lines 
are  for  extralateral  right  purposes  side  lines,  then  the  apex  owner 
can  pursue  the  vein  beyond  them.78  While  there  is  only  one  case 

7«  See  cases  cited  supra,  note  64 ;  Last  Chance  Min.  Co.  v.  Bunker  Hill  &  S. 
Mining  &  Concentrating  Co.,  131  Fed.  579,  66  C.  C.  A.  299 ;  Tyler  Min.  Co.  v. 
Sweeney,  79  Fed.  277,  24  C.  C.  A,  578;  New  Dunderberg  Min.  Co.  v.  Old, 
79  Fed.  598,  25  C.  C.  A.  116. 

7«  FLAGSTAFF  SILVER  MIN.  CO.  OF  UTAH  v.  TARBET,  98  U.  S. 
463,  25  L.  Ed.  253.  ARGENTINE  MIN.  CO.  v.  TERRIBLE  MIN.  CO.,  122 
U.  S.  478,  7  Sup.  Ct.  1356,  30  L.  Ed.  1140;  KING  v.  AMY  &  SILVERSMITH 
CONSOL.  MIN.  CO.,  152  U.  S.  222,  14  Sup.  Ct  510,  38  L.  Ed.  419;  Last 
Chance  Min.  Co.  v.  Tyler  Min.  Co..  157  U.  S.  683,  15  Sup.  Ct.  733,  39  L.  Ed. 
859;  Watervale  Min.  Co.  v.  Leach,  4  Ariz.  34,  33  Pac.  418;  Parrot.  Silver  & 
Copper  Co.  v.  Heinze,  25  Mont.  139,  64  Pac.  326,  53  L.  R.  A.  491,  87  Am. 
St.  Rep.  386.  Any  other  rule  would  really  give  the  right  of  extralateral 
pursuit  of  the  strike  of  a  vein,  and  that  is  not  allowed.  Colorado  Cent. 
Consol.  Min.  Co.  v.  Turck,  50  Fed.  888,  2  C.  C.  A.  67 ;  SOUTHERN  NEVADA 
GOLD  &  SILVER  MIN.  CO.  v.  HOLMES  MIN.  CO.,  27  Nev.  107,  73  Pac.  759, 
103  Am.  St.  Rep.  759 ;  McCormick  v.  Varnes,  2  Utah,  355 ;  Tombstone  Mill. 
&  Min.  Co.  v.  Way  Up  Mining  Co.,  1  Ariz.  426,  25  Pac.  794. 

77  Morrison's  Mining  Rights  (13th  Ed.)  180,  181. 

78  "Our  conclusions  may  be  summed  up  in  these  propositions:     *     *     * 
Fourth.  The  only  exception  >o  the  rule  that  the  end  lines  of  the  location  a» 


424 


SUBSURFACE   RIGHTS. 


(Ch.  21 


actually  deciding  that  the  side  lines  as  end  lines  are  to  be  extended, 
and  that  the  apex  owner  can  go  through  the  end  lines  as  side  lines  in 
following  the  dip,79  the  doctrine  was  conceded  by  counsel  in  another 
case,80  and  it  would  seem  that  Mr.  Lindley  is  right  in  supporting  it.81 
It  has  been  suggested  that,  where  the  vein  crosses  the  location  in 
such  a  way  as  to  cut  the  side  lines  at  an  angle  of  less  than  45°,  the 
regular  end  lines  remain  the  end  lines.82  That  theory  would  bound 
extralateral  rights  as  indicated  in  Figure  No.  19. 


the  locator  places  them  establish  the  limits  beyond  which  he  may  not  go 
in  the  appropriation  of  a  vein  on  its  course  or  strike  is  where  it  is  developed 
that  in  fact  the  location  has  been  placed,  not  along,  but  across,  the  course 
of  the  vein.  In  such  case  the  law  declares  that  those  which  the  locator 
calls  his  side  lines  are  his  end  lines  and  those  which  he  called  end  lines  are 
in  fact  side  lines."  DEL  MONTE  MINING  &  MILLING  CO.  v.  LAST 
CHANCE  MINING  &  MILLING  CO.,  171  U.  S.  55,  89,  90,  18  Sup.  Ct.  895, 
908,  43  L.  Ed.  72. 

™  EMPIRE  MILLING  &  MINING  CO.  V.  TOMBSTONE  MILL.  &  MIN. 
CO.  (C.  C.)  100  Fed.  910;  Id.  (O.  C.)  131  Fed.  339.  ' 

so  BUNKER  HILL  &  S.  MINING  &  CONCENTRATING  CO.  v.  EMPIRE 
STATE-IDAHO  MINING  &  DEVELOPING  CO.,  109  Fed.  538,  48  C.  C.  A.  665. 

si  2  Lindley  on  Mines  (2d  Ed.)  §  589. 

82  Mr.  John  M.  Zane,  "A  Problem  in  Mining  Law,"  16  Harv.  Law  Rev.  94, 


§  118b)  EXTRALATERAL   RIGHTS   UNDER   ACT   OF  1872.  425 

The  theory  of  Figure  No.  19  might  well  be  adopted,  if  it  were  the 
only  way  to  avoid  the  objectionable  consequences  of  the  just  explain- 
ed doctrine  of  Messrs.  Morrison  and  De  Soto;  but,  as  their  doctrine 
cannot  be  accepted,  it  seems  to  be  sufficient  to  point  out  that  the 
theory  here  being  considered  is  believed  not  to  be  consistent  with  the 
various  side  lines  as  end  lines  cases,  and  in  particular  with  the  case  of 
Del  Monte  Mining  &  Milling  Co.  v.  Last  Chance  Mining  &  Milling 
Co.83 

A  practical  question  should  not  be  complicated  by  technical  tests 
difficult  of  ascertainment.  As  the  Supreme  Court  of  the  United  States 
has  pointed  out :  "With  all  the  care  possible,  the  end  lines  marked 
on  the  surface  will  often  vary  greatly  from  a  right  angle  to  the  true 
course  of  the  vein.  But  whatever  inconvenience  or  hardship  may  thus 
happen,  it  is  better  that  the  boundary  planes  [for  extralateral  right 
purposes]  should  be  definitely  determined  by  the  lines  of  the  surface 
location  than  that  they  should  be  subject  to  perpetual  readjustment 
according  to  subterranean  developments  made  by  mine  workings.  Such 
readjustment  at  every  discovery  of  a  change  in  the  course  of  the  vein 
would  create  great  uncertainty  in  titles  to  mining  claims."  84  The 
sole  question  should  be  which  lines  are  crossed,  and  no  attention 
should  be  paid  to  the  angle  at  which  they  cross,  except  so  far  as  may 
be  necessary  to  prevent  the  locator  from  getting  extralateral  rights 
on  the  strike  as  contrasted  with  the  dip. 

The  extralateral  rights  for  the  claim  in  Figure  No.  19  are  there- 
fore as  represented  in  Figure  No.  20.  The  shaded  portion  simply 
reminds  the  reader  of  the  theory  of  Messrs.  Morrison  and  De  Soto 
explained  in  connection  with  Figure  No.  18.  Of  course,  where  the 
side  lines  which  serve  as  end  lines  are  not  parallel,  there  can  be  no 
extralateral  rights  for  the  vein  crossing  them,  unless  those  side  line 
end  lines  converge  on  the  dip.85 

101,  citing  Last  Chance  Min.  Co.  v.  Tyler  Min.  Co.,  61  Fed.  559,  9  C.  C.  A. 
613,  and  Consolidated  Wyoming  Gold  Min.  Co.  v.  Champion  Min.  Co.  (O. 
C.)  63  Fed.  540,  but  seemingly  admitting  in  the  next  preceding  note  of  tfie 
article  that  DEL  MONTE  MINING  &  MILLING  CO.  v.  LAST  CHANCE 
MINING  &  MILLING  CO.,  171  U.  S.  55,  18  Sup.  Ct.  895,  43  L.  Ed.  72,  is 
contra. 

ss  171  U.  S.  55,  18  Sup.  Ct.  895.  43  L.  Ed.  72. 

84  IRON  SILVER  MIN.  CO.  v.  ELGIN  MINING  &  SMELTING  CO.,  118  U. 
S.  196,  207,  6  Sup.  Ct  1177,  1183,  30  L.  Ed.  98. 

852  Lindley  on  Mines  (2d  Ed.)  §  590. 


426 


SUBSURFACE   RIGHTS. 


(Ch.  21 


SAME— VEIN  CROSSING  ONE  END  LINE  AND  ONE  SIDE  LINE. 

118c.  Where  the  discovery  (original  or  principal)  vein  crosses  one  end 
line  and  one  side  line,  the  extralateral  right  bounding  planes 
are  drawn  along  the  crossed  end  line  and  parallel  thereto 
through  the  point  where  the  vein  crosses  the  side  line. 

Because  the  locator  miscalculates  the  course  of  a  vein,  it  often  hap- 
pens that  the  discovery  vein  which  has  entered  one  end  line  goes  out 
a  side  line.  In  such  case  it  is  settled  that  the  end  line  crossed  remains 
the  end  line  of  the  location  for  all  purposes,  and  that  the  extralateral 
right  extends  between  parallel  planes  drawn  along  the  end  line  cross- 
ed by  the  vein  and  through  the  point  'where  the  vein  departs  from 
the  side  line.88 

FIGURE  No.  2f, 


Figure  No.  21  shows  the  method  of  calculation.  The  important 
feature  is  that  the  located  end  lines  remain  the  end  lines  for  extra- 
lateral  right  purposes,  except  so  far  as  it  is  necessary  to  draw  them 
in  to  meet  the  requirements  of  the  located  apex. 

se  DEL  MONTE  MINING  &  MILLING  CO.  v.  LAST  CHANCE  MINING  & 
MILLING  CO.,  171  U.  S.  55,  18  Sup.  Ct.  895,  43  L.  Ed.  72 ;  Clark  v.  Fitzgerald, 
171  U.  S.  92,  18  Sup.  Ct  941,  43  L.  Ed.  87 ;  Republican  Min.  Co.  v.  Tyler  Min. 
Co.,  79  Fed.  733,  25  C.  C.  A.  178;  Tyler  Min.  Co.  v.  Last  Chance  Min.  Co.  (C. 
C.)  71  Fed.  848 ;  TYLER  MIN.  CO.  v.  SWEENEY,  54  Fed.  284,  4  C.  C.  A.  329 ; 
Last  Chance  Min.  Co.  v.  Tyler  Min.  Co.,  61  Fed.  557,  9  C.  C.  A.  613 ;  Consoli- 
dated Wyoming  Gold  Min.  Co.  v.  Champion  Min.  Co.  (C.  C.)  63  Fed.  540 ;  Fitz- 
gerald v.  Clark,  17  Mont.  100,  42  Pac.  273,  30  L.  R.  A.  803,  52  Am.  St.  Rep. 
665.  See  Parrot  Silver  &  Copper  Co.  T.  Heinze,  25  Mont  139,  64  Pac.  326,  53 
L.  R.  A.  491,  87  Am.  St  Rep.  386. 


§  118d) 


KXTBALATERAL  RIGHTS   UNDER  ACT   OP  1872. 


427 


SAME-VEIN  CROSSING  ONE  END  LINE,  BUT  STOPPING  BEFORE 
ANOTHER   BOUNDARY   LINE  IS   REACHED. 

118d.  Where  the  discovery  (original  or  principal)  vein  crosses  one  end 
line  and  stops  before  another  boundary  line  is  reached,  the 
extralateral  right  bounding  planes  are  drawn  along  the 
crossed  end  line  and  parallel  thereto  throngh  the  end  of  the 
vein  inside  the  claim. 

In  the  Del  Monte  Case  it  is  said :  "Suppose  a  vein  enters  at  an  end 
line,  but  terminates  half  way  across  the  length  of  the  location,  his  [the 
locator's]  right  to  follow  that  vein  on  its  dip  between  the  vertical 
side  lines  is  as  plainly  given  by  the  statute  as  though  in  its  course  it 
had  extended  to  the  farther,  end  line.  It  is  a  vein  'the  top  or  apex  of 
which  lies  inside  of  such  surface  lines  extended  downward  vertical- 
ly/ "  8T  The  dictum  just  quoted  seems  perfectly  sound.88  It  is  with- 
in the  principle  governing  the  case  of  a  vein  crossing  one  end  line 
and  one  side  line. 


PIGURE.NO.  22* 


FIGURE  No.  23. 


D» 

SCOVCRY  VEIN 

1 

J1ISCC 


III 

i   I 

«T  DEL  MONTE  MINING  &  MILLING  CO.  v.  LAST  CHANCE  MINING  & 
MILLING  CO.,  171  U.  S.  55,  89,  18  Sup.  Ct.  895,  908,  43  L.  Ed.  72. 

s s  CARSON   CITY    GOLD   &    SILVER    CO.   v.    NORTH    STAR   MIN.   CO. 


428 


SUBSURFACE    RIGHTS. 


(Ch.  -Jl 

The  situation  is  pictured  in  Figures  Nos.  22  and  23,  except  that  in 
Figure  No.  23  the  shaded  portion  represents  the  only  part  of  the  vein 
which  Messrs.  Morrison  and  De  Soto  would  allow  the  claim  owner  to 
take. 


SAME— VEIN  NOT  REACHING  ANY  BOUNDARY  LINE. 

118e.  Extralateral  rights  on  discovery  (original  or  principal)  veins 
not  touching  any  boundary  line  are  fixed  by  drawing  planes 
through  the  ends  of  the  veins  and  parallel  to  the  lines  of  the 
location  which  for  extralateral  right  purposes  are  deemed 
its  end  lines. 


FIGURE.  No.  24-. 


FIGURE  No. 25. 


DISCOVERY  VC.IM 

1 

• 

* 

| 

1 

VEIN 


The  situation  of  a  vein  not  reaching  any  boundary  line,  as  pictured 
in  Figures  Nos.  24  and  25,  seems  to  call  for  the  same  treatment  as  the 
one  dealt  with  in  Figures  Nos.  22  and  23.  In  Figure  No.  24,  as 
in  the  case  of  Figures  Nos.  21  and  22,  the  end  lines  located  as  such 
remain  the  end  lines  for  extralateral  right  purposes,  because  there  is 
no  genuine  reason  for  selecting  other  end  lines  to  fix  dip  rights ;  but 
in  Figure  No.  25  as  in  the  case  of  Figures  Nos.  18,  20,  and  23,  the  in- 
ability to  award  extralateral  rights  on  the  strike  of  the  vein,  and  the  evi- 
dent intent  of  Congress  to  award  extralateral  rights,  furnish  sufficient 

(C.  C.)  73  Fed.  597;  Id.,  S3  Fed.  658,  28  C.  C.  A.  333;  Wakeman  v.  Norton. 
24  Colo.  192,  49  Pac.  283.  See  Tyler  Min.  Co.  v.  Sweeney,  54  Fed.  284,  293,  4 
C.  O.  A.  329. 


g  118f)  EXTRALATERAL  RIGHTS  UNDER  ACT  OF  1872.  429 

reason  for  regarding  for  dip  right  purposes  the  side  lines  as  end  lines. 
Where  the  vein  does  not  touch  any  side  or  end  line,  then  the  rule  to  be 
adopted  should  be  to  treat  as  end  lines  those  lines  which  it  would  cross 
if  it  were  extended  on  its  strike.89  There  seem  to  be  no  cases 
on  the  situation  presented  in  Figures  Nos.  24  and  25. 

A  real  difficulty  would  be  experienced,  were  the  vein  to  lie  in  the 
claim  at  such  an  angle  that  it  would  be  impossible  to  tell  which  lines 
should  be  regarded  as  end  lines  and  which  as  side  lines;  but  in  such 
case,  since  the  burden  is  on  the  owner  of  the  apex  to  establish  his 
right  to  come  into  his  neighbor's  ground,  extralateral  rights  should  be 
denied  pending  further  disclosures  as  to  the  course  of  the  vein. 


SAME— VEIN  CROSSING  TWO  OPPOSITE  PARALLEL  BOUNDARY 
LINES,  BUT  IN  ITS  COURSE  GOING  OUT  OF  AND  RETURN- 
ING THROUGH  ANOTHER  BOUNDARY  LINE. 

118f.  Extralateral  rights  on  discovery  (original  or  principal)  reins 
which  cross  the  two  opposite  parallel  end  lines  located  a* 
such,  but  which  in  their  course  go  ont  of  and  return  through 
one  of  the  side  lines  located  as  such,  are  measured  by  drawing 
parallel  planes  through  the  opposite  parallel  end  lines  and 
through  the  point  of  departure  of  the  vein  from  the  side  line; 
no  extralateral  right  attaching  to  the  space  where  the  vein 
apexes  outside  the  claim. 

Extralateral  rights  on  such  veins,  which  cross  the  two  opposite  par- 
allel side  lines  located  as  such,  and  which  in  their  course  go 
out  of  and  return  through  one  of  the  end  lines  located  as  such, 
also  appear  to  be  governed  by  planes  drawn  parallel  to  the 
end  lines  located  as  such  and  through  the  points  of  departure 
of  the  vein  from  the  side  lines  located  as  such. 
• 

Certain  difficulties  are  to  be  experienced  with  veins  which  ctit  three 
boundary  lines  of  a  location.  Those  difficulties  are  represented  in 
Figures  Nos.  26,  27,  28,  and  29. 

The  situation  in  Figures  Nos.  26  and  27  calls  for  the  representation 
of  more  than  two  planes  to  show  the  dip  rights.  The  spaces  represent- 
ing the  dip  rights  on  that  part  of  the  apex  which  lies  outside  the  claim 
are,  or  course,  out  of  bounds  for  the  claim  owner.'* 

••  "If  the  lode  runs  more  nearly  parallel  with  the  end  lines  than  with  the 
side  lines  as  marked  on  the  ground  as  such,  then  the  end  lines  of  the  location 
must  be  considered  by  the  courts  as  the  side  lines  meant  by  the  statute.  If 
the  lode  runs  more  nearly  parallel  with  the  side  lines  than  the  end  lines,  then 
the  end  lines  as  marked  on  the  ground  are  considered  by  the  court  as  the  end 
lines  of  the  location.  In  both  cases  the  extralateral  rights  are  preserved  and 
maintained  as  defined  In  the  statute."  CONSOLIDATED  WYOMING  GOLD 
M1N.  CO.  T.  CHAMPION  MIN.  CO.  (C.  C.)  63  Fed.  640,  540. 

•o  WATKRIX)O  MIN.  CO.  v.  DOE.  82  Fed.  45,  27  C.  C.  A.  50. 


430 


SUBSURFACE   BIGHTS.  (Ch.  21 

FIGURE.  No.  26.  FIGURE No.2S. 


DIP  RIGHTS 


MO  DIP  R/GHTS  I  DIP  RIGHTS  i 

*          I  l 

I  I 

I  I 


FIGURE  No.  2.7. 


No.  2?. 


§  H8f)  EXTRALATERAL   RIGHTS   UNDER  ACT  OP  1872.  431 

In  Figure  No.  28  there -is  a  difficulty.  At  first  sight  it  seems  as  if 
the  doctrine  of  Figure  No.  18  makes  the  side  lines  become  end  lines, 
and  hence  that  according  to  Messrs.  Morrison  and  De  Soto  the  claim 
owner  would  get  only  the  shaded  portions  of  Figure  No.  28,  while  ac- 
cording to  the  other  doctrine  he  would  be  able  to  go  out  through  the 
located  end  line  as  a  side  line.  But  a  scrutiny  of  the  figure  shows  that 
the  vein  goes  through  a  side  line  and  an  end  line,  and  in  accordance 
with  the  rule  applied  in  the  case  of  Figure  No.  21  the  located  end  lines 
should,  therefore,  remain  the  end  lines  for  extralateral  right  purposes. 
It  is  believed  that  such  is  the  right  rule,  and  that  the  claim  owner  gets 
dip  rights  out  of  both  sides  of  his  location.  The  discussion  of  Figure 
No.  29  should  make  that  clearer. 

While  in  Figure  No.  27  the  true  extralateral  rights  seem  to  be 
properly  represented,  there  is  a  difficulty  which  Figure  No.  29  seems 
to  emphasize.  In  Figure  No.  29  the  vein  goes  in  and  out  of  three  of 
the  four  boundary  lines,  dipping  away  from  the  claim  in  all  cases.  If 
those  parts  of  the  vein  which  go  in  and  out  of  the  side  lines  located 
as  such  are  to  control,  the  rules  governing  in  Figures  Nos.  21  and  26 
would  seem  to  apply  and  to  give  dip  rights  under  both  side  lines.  But 
what  about  the  part  of  the  vein  going  in  and  out  of  the  end  line? 
That  is,  as  a  matter  of  fact,  the  only  part  of  the  vein  which  crosses 
two  opposite  parallel  boundary  lines  of  the  location.  Does  that  make 
the  case  one  of  side  lines  becoming  end  lines,  and  so  determined  by  the 
rule  which  at  first  sight  seemed  to  apply  in  Figure  No.  28  ?  If  it  does, 
the  shaded  portions  represent  all  of  the  vein  that  Messrs.  Morrison  and 
De  Soto  would  allow  the  claim  owner  to  get,  while  Figure  No.  28  shows 
what  on  the  other  view  should  be  allowed  in  such  case.  But  the  doc- 
trine applied  in  Figures  Nos.  21,  22,  24,  and  27,  namely,  that  the 
end  lines  of  the  claim  as  located  shall  control  for  extralateral  right 
purposes,  in  the  absence  of  an  overpowering-  reason  to  the  contrary, 
makes  it  certain  that  in  Figures  Nos.  28  and  29,  as  in  Figure  No.  27, 
the  sole  dip  rights  are  through  the  side  lines  located  as  such.  In 
Figures  Nos.  28  and  29,  however,  unlike  the  other  cases  we  have 
considered,  the  claim  owner  seems  to  have  dip  rights  under  both  side 
lines.  No  case  seems  yet  to  have  disclosed  situations  like  those  pic- 
tured in  Figures  Nos.  27,  28,  and  29. 


432 


SUBSURFACE  RIGHTS. 

Ho.  30. 


(Ch.  21 

FIGURE  No.3Z. 


§  H8g) 


EXTRALATERAL   RIGHTS   UNDER  ACT   OF  1872. 


433 


SA 


VEIN  ENTERING  AND  DEPARTING  THROUGH  ONtY  ONE 
BOUNDARY  LINE. 


118g.  Extralateral  rights  on  discovery  (original  or  principal)  veins 
which  enter  and  depart  by  the  same  boundary  line  only  are  on 
principle  the  same  as  where  the  veins  do  not  reach  any  bound- 
ary line;  but  the  only  decision  directly  in  point  denies  any  ex- 
tralateral  right  in  such  case. 

Where  a  vein  enters  and  departs  by  the  same  side  or  end  line,  the 
principle  that  governed  in  Figures  Nos.  24  and  25  requires  that  lines 
be  drawu  as  in  Figures  Nos.  30,  31,  32,  and  33.  The  only  decision 
squarely  on  the  situation,  however,  is  to  the  effect  that  there  are  no 
extralateral  rights  in  such  cases.91  The  Colorado  case  so  deciding 
emphasized  the  fact  that  there  was  very  little  of  the  apex  in  the  claim 
dealt  with,  and  that  it  did  not  run  parallel  or  nearly  parallel  to  the 
side  lines ; 92  but  it  seems  clearly  to  deny  extralateral  rights  in  such 
a  case  as  that  in  Figure  No.  30,  and  on  that  ground  is  supported  by 
Messrs.  Morrison  and  De  Soto.93  The  Colorado  case  has  been  sup- 
posed to  be  opposed  by  a  later  federal  court  case.94  The  later  case 
presented  a  different  situation,  however,  for  the  original  principal  or 
discovery  vein  went  through  both  end  lines  and  was  for  its  entire 
length  within  the  claim,  and  only  extralateral  rights  on  a  secondary  or 
incidental  vein  were  involved.95  The  situation  in  the  later  federal 
case  may  be  represented  by  Figure  No.  34. 

FIGURE  No  34-. 


DISCOVE.RY 

VPIM 

s»*\ 

1 


»i  CATRON  v.  OLD,  23  Colo.  433,  48  Pac.  687,  58  Am.  St.  Rep.  250. 

»2  23  Colo.  441,  48  Pac.  687,  58  Am.  St.  Rep.  256. 

»s  Morrison's  Mining  Rights  (13th  Ed.)  174. 

»4  ST.  LOUIS  MIN.  &  MILL.  CO.  OF  MONTANA  v.  MONTANA  MIN.  CO. 

»»  See  2  Lindley  on  Mines  (2d  Ed.)  §  584. 
COST.  MIN.  L.— 28 


434  SUBSURFACE   RIGHTS.  (Cll.  21 

While  the  allowance  of  extralateral  rights  to  the  secondary  or 
incidental  vein  under  the  circumstances  shown  in  Figure  No.  34  is  not 
necessarily  inconsistent  with  Catron  v.  Old,96  it  certainly  suggests 
the  propriety  of  refusing  to  follow  that  case.  If  extralateral  rights 
can  be  had  on  a  secondary  or  incidental  vein  entering  and  departing 
by  one  side  line,  they  should  be  allowed  where  a  similarly  situated 
vein  is  an  original  principal  or  discovery  vein. 

SAME— VEIN  COVERED  BY  CONFLICTING  SURFACE  LOCATIONS 

WHICH  HAVE  DIVERSE  EXTRALATERAL  RIGHT 

PLANES— "JUDICIAL    APEX." 

118h.  Where  the  apex  of  the  vein  is  covered  by  conflicting  locations, 
which  have  end  lines  so  differently  slanted  that  after  the 
senior  claim's  extralateral  rights  are  folly  protected  the 
junior  claim  finds  a  part  of  the  dip  nnlocated  by  the  senior 
locator  and  within  the  junior's  end  line  planes  extended,  the 
junior  is  on  principle  entitled  thereto.  For  judicial  purposes 
the  junior  claim  has  the  apex,  a  doctrine  which  finds  its  ulti- 
mate justification  in  Lavagnino  v.  Uhlig. 

In  the  Del  Monte  Case97  a  question  was  raised  which  was  not  pass- 
ed upon.  There  are  three  locations  shown  on  the  diagram  of  the 
case ;  but  only  two,  the  New  York  and  the  Last  Chance,  are  important 
for  our  purposes. 

The  New  York  being  the  senior  location,  and  the  vein  coming  in 
one  of  its  end  lines  and  going  out  a  side  line,  its  extralateral  rights 
are  between  the  planes  f — g — g7  and  R — z — z'.  The  Last  Chance 
claim  has  the  vein  going  out  one  end  line,  and  through  the  other  end 
line  as  projected  on  the  New  York,  a — d — t — t'  clearly  furnishes 
one  boundary  plane  for  the  Last  Chance,  and  the  question  is  whether 
the  other  is  r — s — s/  or  is  b — c — c'.  The  Supreme  Court  of  the  United 
States  did  not  have  to  pass  on  the  question,  because  the  dispute  related 
to  the  right  of  the  Last  Chance  to  the  space  between  a — d — t — t'  and 
r — s — s'.  That  the  Last  Chance  was  entitled  to  the  dip  between  a — d — 
t — t'  and  b — c — c/  except  so  far  as  the  New  York  dip  rights  were 
carved  out  of  it,  seems  clear  on  principle,  however,  even  though  for 
judicial  purposes  both  the  New  York  and  the  Last  Chance  thereby 

104  Fed.  664,  44  C.  C.  A.  120,  56  L.  R.  A.  725 ;  MONTANA  MIN.  CO.  Y.  ST. 
LOUIS  MIN.  &  MILL.  CO.,  102  Fed.  430,  42  C.  C.  A.  415.  See  Mr.  John  M. 
Zane,  "A  problem  in  Mining  Law,"  16  Harv.  Law  Rev.  94,  101. 

»e  23  Colo.'  433,  48  Pac.  687,  58  Am.  St.  Rep.  256. 

»7  DEL  MONTE  MINING  &  MILLING  CO.  v.  LAST  CHANCE  MINING  & 
MILLING  CO.,  171  U.  S.  55,  18  Sup.  Ct.  895,  43  L.  Ed.  72. 


§  USh)  EXTRALATERAL   RIGHTS  UNDER  ACT   OF  1872. 

FIGURE,  No.  35. 


435 


are  allowed  to  base  a  right  upon  the  same  part  of  the  apex.  Because 
the  Last  Chance  was  allowed  to  throw  its  end  line  over  on  the  New 
York  to  perfect  its  extralateral  rights,  it  had  for  extralateral  right  pur- 
poses all  the  apex  within  the  lines  so  thrown,  and  all  the  dip  that 
went  with  it,  subject  only  to  the  prior  dip  right  of  the  New  York.  The 
Del  Monte  Case  does  not  so  decide,  because  the  question  was  not  in- 
volved there ; 98  but  it  seems  to  be  a  logical  extension  of  the  principles 
announced  in  that  decision,"  and  is  sustained  by  the  decision  on  a  sim- 

98  171  U.  S.  85,  18  Sup.  Ct.  895,  43  L.  Ed.  72. 

»9  Bunker  Hill  &  Sullivan  Mining  &  Concentrating  Co.  v.  Empire  State-Ida- 
bo  Mining  &  Developing  Co.,  109  Fed.  538,  547,  48  C.  C.  A.  665 ;  Empire  State- 
Idaho  Mining  &  Developing  Co.  v.  Bunker  Hill  &  Sullivan  Mining  &  Concentrat- 


436  SUBSURFACE   BIGHTS.  (Ch.  21 

ilar  situation  found  in  the  broad  vein  cases  discussed  in  the  next  sec- 
tion. The  ultimate  justification  of  the  "judicial  apex"  doctrine  must, 
of  course,  rest  on  the  foundation  furnished  by  the  case  of  Lavagnino 
v.  Uhlig.f 

Analogous  to  the  questions  just  considered  is  the  question  raised 
in  Figure  No.  36. 

F/GURE.  Mo.  36. 


/                   p.,  PBV\/U,r,                                          X^-                                       - 

/ 

SENIOR               /      >v            JUNIOR 

\ 

/ 

*    /  ^  \ 

\ 

N         S\ 

/  /  ^  ^ 

/  /  \  ^ 

'  <'  § 

One  case  has  suggested  that  the  dip,  X,  is  owned  by  the  two  claims 
together,100  but  that  seems  illogical  Either  the  true  solution  is  to 
be  found  in  the  doctrine  of  "theoretical  apex,"  hereafter  explained,101 
or  else  the  dip  can  be  acquired  only  by  locations  which,  because  on 
the  dip,  have  no  extralateral  rights. 

ing  Co.,  131  Fed.  591,  66  C.  C.  A.  99.  See  Id.,  114  Fed.  417,  52  C.  O.  A.  219. 
But  see  Jefferson  Min.  Co.  v.  Anchoria-Leland  Min.  &  Mill.  Co.,  32  Colo.  176r 
75  Pac.  1070,  64  L.  R.  A.  925 ;  State  v.  District  Court,  25  Mont.  504,  65  Pac. 
1020. 

1 198  U.  S.  443,  25  Sup.  Ct  716,  49  L.  Ed.  1119. 

100  CHAMPION  MIN.   CO.  v.   CONSOLIDATED  WYOMING  GOLD  MIN. 
CO.,  75  Cal.  78,  16  Pac.  513.    This  case  takes  the  view  that  extralateral  rights 
may  be  taken  beyond  the  end  line  planes  extended  if  no  third  persons  are  there- 
by injured,  and  that  they  are  not  injured  if  the  claims  concerned  own  the  whole 
of  the  apex  above  the  dip  taken.    But  query? 

101  See  §  118m,  infra. 


§  1181)  EXTRALATERAL  RIGHTS  UNDER  ACT  OF  1872.  437 

SAME— BROAD  VEIN  BISECTED  ON  ITS  STRIKE  BY  THE  COMMON 
SIDE  LINE  OF  TWO  ADJOINING  LOCATIONS. 

1181.  Zxtralateral  rights  on  a  broad  discovery  (original  or  principal) 
vein,  bisected  on  its  strike  by  the  common  side  line  of  two 
adjoining  locations,  belong  to  the  senior  claim,  subject  only 
to  the  qualification  noted  in  118h. 

A  question  analogous  to  the  last  is  presented  by  a  broad  vein  bi- 
sected by  the  common  side  line  of  two  locations  which  have  end  lines 
of  different  slant.  Before  taking  up  that  case,  though,  a  word  must 
be  said  about  the  case  where  the  end  lines  of  the  two  adjoining  loca- 
tions are  in  the  same  direction. 

FIGURE:  No. 37. 


In  Figure  No.  37  it  is  now  settled  that  the  senior  location  takes  all 
the  extralateral  rights  on  the  broad  vein,  though,  of  course,  it  gets 
no  rights  on  the  surface  of  the  junior  location.102  In  determining 
seniority,  priority  of  discovery  may  be  shown  by  testimony  other  than 
the  entries  and  patents,  and  it  is  settled  that  acceptance  by  the  govern- 
ment of  location  proceedings  had  before  the  statute  of  1866,  and  issu- 
ance of  a  patent  thereon,  is  evidence  that  those  location  proceedings 
were  in  accordance  with  the  rules  and  customs  of  the  local  mining 
district.103 

102  ST.  LOUIS  MIN.  &  MILL.  CO.  OF  MONTANA  v.  MONTANA  MIN.  CO., 
104  Fed.  664,  44  C.  C.  A.  120,  56  L.  R.  A.  725 ;  Empire  State-Idaho  Mining  & 
Developing  Oo.  v.  Bunker  Hill  &  Sullivan  Mining  &  Concentrating  Co.,  114 
Fed.  417,  52  C.  C.  A.  219 ;  Id.,  131  Fed.  591,  66  C.  C.  A.  99 ;  Last  Chance  MIn. 
Co.  v.  Bunker  Hill  &  S.  Mining  &  Concentrating  Co.,  131  Fed.  579,  66  C.  C. 
A.  299;  UNITED  STATES  MIN.  CO.  v.  LAWSON,  134  Fed.  769,  67  C.  C.  A. 
587.  The  last  case  overruled  Hall  v.  Equator  Mining  &  Smelting  Co.  (U.  S.) 
Fed.  Cas.  No.  5,931,  an  earlier  decision  by  Judge  Hallett,  and  has  been  affirm- 
ed in  LAWSON  v.  UNITED  STATES  MIN.  CO.,  207  U.  S.  1,  28  Sup.  Ct.  15, 
52  L.  Ed.  65.  See,  also,  ARGENTINE  MIN.  CO.  V.  TERRIBLE  MIN.  CO., 
122  U.  S.  478,  7  Sup.  Ct.  1356,  30  L.  Ed.  1140. 

los  LAWSON  v.  UNITED  STATES  MIN.  CO.,  207  U.  S.  1,  28  Sup.  Ct.  15, 
52  L.  Ed.  65. 


438 


SUBSURFACE   RIGHTS. 


(Ch.  21 


.38. 


Df  sco  VERY"  VE.IN 


In  Figure  No.  38  we  have  the  question  presented:  Shall  the  junior 
location  have  all  the  dip  of  the  broad  vein  not  taken  by  the  senior 
location,  and  yet  included  within  the  junior's  end  lines  extended?  One 
federal  case  answers  the  question  in  the  affirmative,10*  though  the 
reasoning  of  a  Utah  case  seems  to  support  the  negative.105  The  af- 
firmative answer  would  seem  to  be  sound,  because  the  senior  locator 
is  protected  fully.  Moreover,  the  affirmative  answer  is  supported  by 
the  case  just  discussed  of  a  vein  covered  by  conflicting  surface  loca- 
tions. 

ID*  EMPIRE  STATE-IDAHO  MINING  &  DEVELOPING  CO.  v.  BUNKER 
HILL  &  S.  MINING  &  CONCENTRATING  CO.,  114  Fed.  417,  52  C.  C.  A,  219. 

105  BULLION  BECK  &  CHAMPION  MIN.  CO.  V.  EUREKA  HILL  M1N.  CO., 
6  Utah,  3,  11  Pac.  615. 


§  H8j) 


EXTRALATERAL   EIGHTS   UNDER  ACT   OF  1872. 


439 


SAME-VEIN  SPLITTING  ON  ITS  STRIKE. 

118j.  Where  a  discovery  (original  or  principal)  vein  splits  within  the 
claim,  so  as  to  form  two  separate  veins,  extralateral  right*  on 
each  split  portion  seem  to  be  determined  as  if  each  remains 
the  principal  vein. 

FIGURE  No. 


Where  a  vein  splits  on  its  strike,  so  as  to  make  two  veins  from  that 
point,  it  seems  that  extralateral  rights  are  measured  on  each  part 
as  if  it  were  the  main  vein.10'  Instead  of  one  split  part  being  regard- 
ed as  the  principal  vein  and  the  other  as  the  secondary,  both  seem  to  be 
regarded  as  principal  veins.  The  situation  is  represented  in  Figure 
No.  39.  But  it  should-be  remembered  that  broken-off  bodies  of  ore 
may  be  so  connected'  with  the  fissure  vein  as  not  to  form  a  separate 
vein  entitled  to  extralateral  rights.107  Where  one  of  the  split  ends 
entitled  to  extralateral  rights  passes  on  its  strike  into  another  loca- 
tion, the  dip  rights  of  the  first  location  are  measured  from  the  point 
of  departure,  while  the  second  location  may  follow  the  part  of  the 
fork  within  its  lines  on  the  dip  of  that  part  under  the  first  location.108 

ice  See  HICKEY  v.  ANACONDA  COPPER  MIN.  CO.,  33  Mont.  46,  81  Pac. 
806.  Compare  Doe  v.  Waterloo  Min.  Co.  (C.  C.)  54  Fed.  935. 

107  TOMBSTONE  MILL.  &  MIN.  CO.  v.  WAY  UP  MIN.  CO.,  1  Ariz.  426, 
25  Pac.  794. 

108  COLORADO  CENT.  CONSOL.  MIN.  CO  v.  TURCK,  50  Fed.  888,  2  C.  C. 
A.  67.    But  see  WALRATH  v.  CHAMPION  MIN.  CO.,  171  U.  S.  293,  18  Sup. 
Ct  909,  43  L.  Ed.  170 ;  JEFFERSON  MIN.  CO.  v.  ANCHORI A-LEL A ND  MIN. 
&  MILL.  CO.,  32  Colo.  176,  75  Pac.  1070,  64  L.  R.  A.  925. 


440  SUBSURFACE   RIGHTS.  (Ch.  21 


SAME— SECONDARY   OR  INCIDENTAL   VEINS. 

118k.  Extralateral  rights  on  secondary  (incidental)  veins— that  is, 
on  veins  other  than  the  discovery  (original  or  principal)  vein- 
are  determined  with  reference  to  those  lines  which  for  the 
discovery  (original  or  principal)  vein's  extralateral  rights 
are  the  end  lines  of  the  claim.  On  principle  and  under  one 
state  decision  the  secondary  (incidental)  veins  are  allowed  all 
the  extralateral  rights  which  they  would  have  with  those  end 
lines  if  they  were  the  discovery  (original  or  principal)  veins; 
but  there  is  some  contention  that  they  are  confined  within  the 
extralateral  right  planes  of  the  discovery  (original  or  prin- 
cipal) vein.'  The  latter  contention  finds  some  snpport  in 
Walrath  v.  Champion  Mining  Co.,  which  contains  a  dictum 
that  a  senior  location  which  does  not  have  as  much  of  the 
apex  of  a  secondary  (incidental)  vein  as  it  has  of  the  discov- 
ery (original  or  principal)  vein  may  take  the  whole  dip  of  the 
secondary  (incidental)  vein  within  the  discovery  vein's  extra- 
lateral  right  bounding  planes;  but  that  dictum  may  well  be 
doubted. 

Where  the  secondary  (incidental)  vein  cuts  across  the  discovery 
(original  or  principal)  vein  at  right  angles,  and  maintains 
that  relative  position  through  the  claim,  there  can  usually  be 
no  extralateral  rights  in  the  secondary  (incidental)  vein,  be- 
cause to  award  them  would  be  to  give  extralateral  rights  on 
the  strike  of  such  vein. 

Under  the  act  of  1866  only  one  vein  could  be  located  or  patented ; 
but  under  the  act  of  1872  claims  located  and  patented  under  the  act 
of  1866,  as  well  as  those  under  the  act  of  1872,  are  entitled  to  all 
veins  apexing  therein.109  The  only  exception  is  in  the  case  of  loca- 
tions under  the  act  of  1866,  where  adverse  rights  in  secondary  veins 
were  acquired  prior  to  the  act  of  1872. 110  There  is  no  doubt  that  ex- 
tralateral rights  may  be  had  on  secondary  or  incidental  veins,  if  they 
are  properly  situated  with  reference  to  the  discovery  vein;  and  there 
is  no  doubt  that  they  are  properly  situated  with  reference  to  that  vein 
if  they  are  more  or  less  parallel  with  it  and  are  embraced  within  the 


10  9  Rev.  St.  U.  S.  §  2322  (U.  S.  Comp.  St.  1901,  p.  1425);  WALRATH  v. 
CHAMPION  MIN.  CO.,  171  U.  S.  293,  305,  18  Sup.  Ct.  909,  43  L.  Ed.  170. 

no  Rev.  St.  §  2328  (U.  S.  Comp.  St.  1901,  p.  1431) ;  Eclipse  Gold  &  Silver  Mln. 
Co.  v.  Spring,  59  Cal.  304;  Mt.  Diablo  Mill.  &  Min.  Co.  v.  Callison,  5  Sawy. 
(U.  S.)  439,  Fed.' Gas.  No.  9,886;  North  Noonday  Min.  Co,  v.  Orient  Min.  Co. 
(C.  C.)  1  Fed.  522 ;  Jupiter  Min.  Co.  v.  Bodie  Consol.  Min.  Co.  (C.  C.)  11  Fed. 
666;  Iron  Silver  Min.  Co.  v.  Cheesman  (C.  C.)  8  Fed.  297;  Book  v.  Justice 
Min.  Oo.  (C.  C.)  58  Fed.  106 ;  Armstrong  v.  Lower,  6  Colo.  393. 


§  118k)  EXTRALATERAL   RIGHTS   UNDER   ACT   OF  1872. 

FIGURE  No. 


441 


I 


parallel  planes  which  measure  the  extralateral  rights  on  the  discovery 
vein.111    The  situation  is  represented  in  Figure  No.  40. 112 

It  is  also  perfectly  clear  that  the  lines  of  the  claim,  determined  to 
be  the  legal  end  lines  of  the  claim  with  reference  to  the  discovery 
vein,  are  such  for  all  secondary  veins.113  But  beyond  these  points 
there  is  confusion.  Messrs.  Morrison  and  De  Soto  insist  that  because 
the  end  lines  of  the  location,  ascertained  to  be  such  with  reference  to 

in  WALRATH  v.  CHAMPION  MIN.  CO.,  171  U.  S.  293,  18  Sup.  Ct.  909,  43 
L.  Ed.  170;  St.  Louis  Min.  &  Mill.  Co.  of  Montana  v.  Montana  Min.  Co.,  104 
Fed.  664,  44  C.  C.  A.  120,  56  L.  R.  A.  725. 

112  In  JEFFERSON  MIN.  CO.  v.  ANCHORIA-LELANB  MIN.  &  MILL.  CO., 
32  Colo.  176,  75  Pac.  1070,  64  L.  R.  A.  925,  the  court  failed  to  allow  the  secon- 
dary vein  all  the  benefit  of  the  discovery  vein's  planes  for  extralateral  right 
purposes  which  it  was  entitled  to,  though  both  veins  cut  across  both  side 
lines,  and  the  side  lines,  therefore,  were  for  extralateral  right  purposes  end 
lines.  To  the  extent  of  such  failure  the  decision  must  be  wrong.  While,  the 
case  has  the  support,  seemingly,  of  WALRATH  v.  CHAMPION  MIN.  CO.,  171 
U.  S.  293,  18  Sup.  Ct.  909,  43  L.  Ed.  170,  that  case  is  discredited,  as  the  dis- 
cussion in  this  section  (infra,  p.  447)  shows,  and  anyway  should  be  confined  to 
locations  under  the  act  of  1866.  Under  the  doctrine  of  the  "judicial  apex" 
treated  in  §  118h,  supra,  and  supported  by  DEL  MONTE  MINING  &  MILLING 
CO.  v.  LAST  CHANCE  MINING  &  MILLING  CO.,  171  U.  S.  55,  18  Sup.  Ct.  895, 
43  L.  E<3.  72,  it  would  seem  as  if  the  owner  of  the  Mattie  L  claim  should  have 
been  given  all  rights  in  the  secondary  vein  within  his  side  line  end  lines  not 
included  within  the  extended  extralateral  right  bounding  planes  of  the  Anchor 
claim  on  that  secondary  vein.  In  any  event  he  was  entitled  to  all  between  the 
east  side  line  end  line  and  a  plane  parallel  thereto  drawn  through  the  point 
where  the  secondary  vein  left  the  Mattie  L  to  enter  the  Anchor  claim. 

us  COSMOPOLITAN  MIN.  CO.  v.  FOOTE  (C.  C.)  101  Fed.  518;  JEFFER- 
SON MIN.  CO.  v.  ANCHORIA-LELAND  MIN.  &  MILL.  CO.,  32  Colo.  176,  75 
Pac.  1070,  64  L.  R.  A.  925 ;  ST.  LOUIS  MIN.  &  MILL.  CO.  OF  MONTANA  V. 
MONTANA  MIN.  CO.,  104  Fed.  664,  44  C.  C.  A.  120,  56  L.  R.  A.  725. 


442 


SUBSURFACE   RIGHTS. 


(Ch.  21 


the  discovery  vein,  are  such  for  all  secondary  or  incidental  veins,  there- 
fore the  end  line  planes  fixing  the  extralateral  rights  on  the  discovery 
veins  must  govern  all  extralateral  rights.  Their  statement  is :  "There 
can  be  but  one  set  of  end  lines  for  all  the  veins  covered  by  the 
patent."  114  That  quoted  remark  must  be  conceded  to  be  true;  but  it 
is  just  as  true,  nevertheless,  that  there  may  be  several  sets  of  end 
line  planes  for  extralateral  right  purposes,  even  on  the  same  vein.  The 
situation  represented  in  Figures  Nos.  26  and  27  proves  that. 

Since  there  may  be  several  sets  of  extralateral  right  planes  on 
the  same  discovery  vein,  it  is  not  conceived  why  there  may  not  be 
within  the  same  end  lines  for  the  claim  one  set  of  extralateral  right 
planes  for  the  discovery  vein  and  another  for  the  incidental.115  In 
Figure  No.  34,  for  instance,  there  are  necessarily  two  sets,  because  the 
secondary  vein  apex  is  not  of  the  same  length  in  the  location  as  the 
discovery  vein.J 

FIGURE:  No.  *H. 


So  in  Figure  No.  41,  for  the  same  reason,  there  must  be  two  sets 
of  planes  run,  one  set  for  each  vein.  Since  the  end  lines  of  the  claim 
for  the  discovery  vein  remain  the  same  for  the  secondary  or  incidental 
vein  as  for  the  discovery  vein,  and  all  planes  must  be  parallel  to  them, 

114  Morrison's  Mining  Rights  (13th  Ed.)  178. 

us  Even  though  it  be  admitted  that  the  dictum  in  WALRATH  v.  CHAMP- 
ION MIN.  CO.,  72  Fed.  978,  19  C.  C.  A.  323,  and  171  U.  S.  293,  18  Sup.  Ct.  909, 
43  L.  Ed.  170,  means  that  the  end  line  planes  for  the  discovery  vein,  when  they 
are  identical  with  the  end  lines  of  the  claim  itself,  are  to  serve  for  secondary 
veins  as  well,  that  dictum  does  not  logically  require  that  anything  short  of 
the  actual  end  lines  of  the  claim  (including,  of  course,  side  lines  treated  as 
end  lines)  and  short  of  the  points  of  entrance  and  departure  of  the  secondary 
vein  from  the  claim  shall  determine  the  secondary  vein's  extralateral  rights. 

t  But  see  the  discussion  of  Walrath  v.  Champion  Min.  Co.,  infra. 


§  118k) 


EXTRALATEKAL   BIGHTS   UNDER  ACT   OF    1872. 


443 


all  technicalities  are  complied  with,  while  the  gift  of  extralateral  rights 
on  all  veins  within  the  location  can  be  satisfied  in  no  other  way.  The 
Colorado  case  giving  extralateral  rights  on  secondary  veins,  even 
though  they  do  not  apex  in  the  same  segment  of  the  claim  as  does  the 
discovery  vein,  seems  perfectly  sound.118  Under  that  doctrine  as  full 
extralateral  rights  would  exist  on  the  incidental  vein  in  Figure  No. 
41  as  if  that  vein  were  the  discovery  vein,  instead  of  the  extralateral 
rights  being  confined  to  the  segment  of  the  incidental  vein  shown 
in  Figure  No.  41  to  be  between  the  extralateral  right  bounding  planes 
for  the  discovery  vein.  It  should  be  noticed  that  the  foregoing  doc- 
trine enables  the  Colorado  court  to  escape  from  what  would  otherwise 
be  an  absurd  result  of  Catron  v.  Old117  at  the  same  time  that  it  dis- 
credits Catron  v.  Old. 

Under  Catron  v.  Old  there  would  be  extralateral  rights  on  neither 
vein  in  Figure  No.  42.  Whether  there  would  be  any  in  the  secondary 
vein  in  Figure  No.  43  is,  perhaps,  in  doubt  under  that  decision.  Prob- 

PIGURE.  No.  H-2. 


\  \ 


FIGURE  No.  M-3. 


11 «  AJAX  GOLD  MIN.  CO.  v.  HILKEY,  31  Colo.  131,  72  Pac.  447,  62  L.  R. 
A.  555,  102  Am.  St.  Rep.  23.  But  see  Jefferson  Min.  Co.  v.  Anchoria-Leland 
Min.  &  Mill.  Co.,  32  Colo.  176,  75  Pac.  1070,  64  L.  R.  A.  925. 

i"  23  Colo.  433,  48  Pac.  687,  58  Am.  St.  Rep.  256. 


444 


SUBSURFACE   RIGHTS. 


(Ch.  21 


ably,  however,  there  would  be.118  But  under  Catron  v.  Old  there 
would  be  none  on  the  discovery  vein  in  Figure  No.  44,  and  but  for 
Ajax  Gold  Min.  Co.  v.  Hilkey**  the  consequence  would  be  that  there 
would  be  no  extralateral  rights  on  the  incidental  or  secondary  vein, 
which  extends  clear  across  the  claim  and  cuts  both  end  lines.  The 
Colorado  court  wisely  avoided  such  an  absurd  result ;  but  at  the  same 
time,  by  giving  extralateral  rights  on  the  incidental  or  secondary  vein 
in  Figure  No.  44,  that  court  made  the  implied  denial  of  extralateral 
rights  on  the  discovery  vein  in  the  same  figure  highly  objectionable. 

FIGURE.  No.  4-4-. 


Walrath  v.  Champion  Min.  Co. 

The  much  discussed  case  of  Walrath  v.  Champion  Min.  Co.  119  has 
raised  a  very  important  question  in  regard  to  a  secondary  vein's  extra- 
lateral  rights,  namely,  the  question  whether  the  senior  location  may 
take  the  whole  dip  of  a  secondary  vein  within  the  extralateral  right 
bounding  planes  of  the  discovery  vein,  even  though  a  greater  length 
of  the  dip  of  the  secondary  vein  is  thus  secured  than  there  is  length  of 
the  apex  of  the  secondary  vein  within  the  location.120  For  a  clear 
understanding  of  the  case  Figures  Nos.  45  and  46  are  given.  The  dia- 
gram in  Figure  No.  45  is  the  one  given  in  the  lower  court's  report.121 
In  Figure  No.  46  the  lines  fixed  by  the  Circuit  Court  and  by  the  Cir- 
cuit Court  of  Appeals  are  shown  as  they  appear  in  the  report  of  the 
decision  of  the  United  States  Supreme  Court.122 

us  There  certainly  should  be  extralateral  rights  in  such  case.  MONTANA 
MIN.  CO.  v.  St.  LOUIS  MIN.  &  MILL.  CO.,  102  Fed.  430,  42  C.  C.  A.  415; 
St.  Louis  Min.  &  Mill.  Co.  v.  Montana  Min.  Co.,  104  Fed.  664,  44  C.  C.  A.  120, 
56  L.  R.  A.  725. 

**  31  Colo.  131,  72  Pac.  447,  62  L.  R,  A.  555,  102  Am.  St.  Rep.  23. 

us  171  U.  S.  293,  18  Sup.  Ct.  909,  43  L.  Ed.  170. 

120  That  he  cannot  have  more  of  the  discovery  (i.  e.,  original  or  principal) 
vein  than  he  has  of  its  apex  is,  of  course,  clear.     See  Bunker  Hill  &  S.  Min- 
ing &  Concentrating  Co.  v.  Empire  State-Idaho  Mining  &  Developing  Co.  (C. 
G.)  108  Fed.  189 ;   Id.,  109  Fed.  538,  48  C.  C.  A.  665. 

121  Walrath  v.  Champion  Min.  Co.  (C.  C.)  63  Fed.  552,  554. 

122  171  u.  S.  293,  295,  18  Sup.  Ct.  909,  43  L.  Ed.  170. 


118k)  EXTRALATERAL   RIGHTS   UNDER  ACT   OF  1872. 

No.  4-5. 


445 


446 


SUBSURFACE   EIGHTS. 


(Ch.  21 


FIGURE  No. 


--r 


o  SHOWING  THE  END  Lives  CLAIMED 

BY  EACH,  AND  TH£  LlNES  FlXED  BY  TH£ 

Cmcuir  COURT  AHD  CQURTQF  APPEALS. 


CHAINS 


§  118k)  EXTRALATERAL   RIGHTS   UNDER   ACT   OF   1872.  447 

The  question  in  the  case  related  to  the  dip  rights  of  the  Providence 
on  the  secondary  vein  x — x.  The  discovery,  and  hence  principal,  vein 
z — z'  cut  both  the  lines  g — h  and  a — p,  which  were  substantially  paral- 
lel, and  were  treated  by  the  courts  as  the  statutory  end  lines.  The 
Supreme  Court  of  the  United  States  affirmed  the  decree  of  the  Cir- 
cuit Court  of  Appeals.  The  decree  affirmed  allowed  the  Providence 
claim  rights  on  the  secondary  vein  x — x,  within  the  extended  planes 
bounding  the  discovery  vein's  extralateral  rights;  i.  e.,  within  planes 
drawn  downward  through  g — h  and  a — p,  extended  indefinitely  in 
their  own  direction.123  It  is  conceded  that,  as  the  case  stands,  that 
gave  a  greater  dip  right  on  the  secondary  vein  than  would  exist  if  it 
were  the  original  vein.  But,  to  make  the  matter  worse,  the  decree 
fixed  the  planes  as  above,  "subject  to  the  condition  that  the  complain- 
ant has  no  right  to  enter  upon  the  surface  of  the  respondent's 
claims"; 124  and  it  has  been  suggested  that  the  Providence  was  to  have 
the  right  to  upraise  on  the  vein  x — x,  between  the  planes  v — v'  and 
g — h  extended  across  the  New  Year's  extension.  Mr.  Lindley,  who 
was  one  of  the  counsel  in  the  case,  is,  however,  "quite  satisfied  that 
this  result  was  neither  intended  nor  contemplated  by  the  court."  125 
But,  even  so,  that  still  leaves  the  Providence  owning  more  of  the  dip 
of  the  secondary  vein  than  it  has  apex  within  its  boundary  lines.  Such 
a  doctrine  may  not  be  defended,  even  on  the  principle  announced  in 
Van  Zandt  v.  Argentine  Min.  Co. ; 126  for  in  Van  Zandt  v.  Argentine 
Min.  Co.  the  dip  claimed  by  location  was  the  discovery  vein  of  the  lo- 
cation. The  holding  that  a  prior  location  on  the  dip  based  solely  on 
a  discovery  on  the  dip  may  retain  the  part  of  the  dip  inclosed  within  its 
common-law  boundaries  as  against  a  subsequent  locator  of  the  apex 
may  possibly  be  justified  on  the  ground  that  the  location  was  valid 
when  made,  because  based  on  a  sufficient  discovery,  and  could  not  be 
invalidated  through  no  fault  of  the  locator; 12T  but  to  say,  as  Walrath 
v.  Champion  Min.  Co.  does,  that  a  mining  claim  has  all  of  the  dip 
of  incidental  lodes  which  apex  within  it,  so  far  as  that  dip  is  contained 
within  the  extended  bounding  planes  established  for  extralateral  rights 
on  the  discovery  vein,  is  to  do  something  not  necessary  for  the  con- 
tinued validity  of  the  claim,  and  something  which  places  an  undue 
limitation  on  the  rights  of  the  present  or  future  owners  of  that  part  of 

123  WALRATH  v.  CHAMPION  MIN.  CO.,  72  Fed.  978,  19  C.  C.  A.  323. 
12*  Id. 

125  2  Lindley  on  Mines  (2d  Ed.)  p.  1043,  §  593. 

126  (C.  C.)  8  Fed.  875. 

i2T  The  writer  has  already  doubted  the  soundness  of  the  decision  in  VAN 
ZANDT  v.  ARGENTINE  MIN.  CO.     See  note  12,  supra. 


448  SUBSURFACE   RIGHTS.  (Ch.  21 

the  apex  of  the  incidental  vein  which  is  outside  the  claim  and  yet 
covers  part  of  the  dip  thereof  awarded  to  the  claim.128 

That  the  court  fell  into  the  error  which  it  did  was  doubtless  due 
to  the  fact  that  the  ore  bodies  in  dispute  did  not  lie  between  the  line 
v — v'-  claimed  as  a  bounding  plane  by  the  Champion  (which  should 
have  been  the  line  fixed  by  the  court)  and  the  line  g — h — h' — h".  The 
ore  bodies  contended  for  were  north  of  the  line  g — h,  outside  of  the 
vertical  boundaries  of  either  party,  and  lying  between  the  800  and 
1,000  foot  levels  of  the  Champion.  That  g — h,  instead  of  v — v',  was 
fixed  as  the  bounding  plane  for  the  secondary  vein  x — x,  is  therefore 
strictly  in  the  nature  of  a  dictum ;  and  because  it  was  a  dictum  which 
affected  no  substantial  right  of  the  Champion,  that  company  took  no 
cross-appeal.129  It  will  take  another  decision  by  the  United  States 
Supreme  Court  to  define  the  effect  of  Walrath  v.  Champion  Min.  Co., 
and  to  determine  whether  that  dictum  is  to  become  settled  law.  Mean- 
while it  is  possible  to  say  that  in  any  event  the  case  announces  a  rule 
applicable  only  to  claims  located  and  patented  under  the  act  of  1866. 13° 

Where  the  incidental  vein  cuts  across  the  discovery  vein  at  right 
angles,  or  otherwise  lies  at  right  angles,  to  the  discovery  vein,  the 
t  doctrines  that  there  can  be  but  one  set  of  end  lines  for  extralateral 
right  purposes  for  the  claim,  that  those  must  be  fixed  with  reference 
to  the  discovery  vein,  and  that  there  can  be  no  extralateral  right  of 
pursuit  on  the  strike  of  a  vein,  necessarily  compel  a  denial  of  any 


128  gee  "A  Problem  in  Mining  Law,  Walrath  v.  Champion  Mining  Company," 
by  Mr.  John  M.  Zane,  in  16  Harv.  Law  Rev.  94.    That  article  deserves  careful 
reading.    The  true  doctrine  to  adopt  for  all  cases  would  seem  to  be  that  no  dip 
rights  can  be  awarded  to  a  location  in  respect  to  any  part  of  a  vein  which 
apexes  in  another  location  when  to  award  such  rights  would  interfere  with 
what  would  otherwise  be  the  dip  rights  of  the  location  having  that  part  of 
the  apex.    See  McElligott  v.  Krogh,  151  Cal.  126,  90  Pac.  823. 

129  "No  cross-appeal  was  taken  by  the  Champion  Company  to  either  of  the 
appellate  courts  for  economic  reasons.    All  of  the  vein  within  the  New  Year's 
and  New  Year's  Extension  claims  north  of  the  plane  f — g  had  been  worked 
out  years  before  the  litigation  arose.    There  was  nothing  of  value  there  to  jus- 
tify litigation.    The  narrow  strip  of  ground  between  the  plane  claimed  by  the 
Champion,  v — v',  and  the  one  fixed  by  the  court,  g — h — h',  did  not  embrace 
the  ore  'shoot,'  and  was  practically  valueless.     The  valuable  ore  bodies  over 
which  the  litigation  arose,  and  which  alone  engaged  the  attention  of  either 
courts  or  litigants,  were  within  the  triangle  formed  by  the  line  g — h — h'  and 
the  one  claimed  by  the  providence,  f — g — g'.    The  only  object  to  be  gained  by 
prosecuting  a  cross-appeal  would  have  been  to  secure  the  establishment  of  a 
principle  to  be  followed  in  other  cases."    2  Lindley  on  Mines  (2d  Ed.)  p.  1043, 
§  593,  note. 

130  Mr.  John  M.  Zane,  in  16  Harv.  Law  Rev.  94,  107. 


§1187) 


EXTRALATERAL   RIGHTS   UNDER  ACT   OP    1872. 


extralateral  right  to  the  secondary  vein.181    The  situation  is  represent 
ed  by  Figures  Nos.  47  and  48. 


FIGURE  No. 


VE.N 


Mo.  ¥-8. 


i 

/ 

2 
H 

rjjscovj; 

t?Y  ^ik'N 

^ 

f 
1 

i 
i 

SAME— VEIN   DIPPING   UNDER   PRIOR  PATENTED   LAND. 

1182.  Extralateral  rights  exist,  although  the  vein  dips  under  prior 
patented  mining  land,  and  on  principle  where  it  dips  nnder 
a  prior  agricultural  grant;  but  the  only  case  on  the  latter 
situation  denies  the  right  of  extralateral  pursuit  on  veins 
which  dip  nnder  agricultural  grants  which  antedate  the  min- 
ing location. 

Vein  Dipping  under  Prior  Mining  Claims. 

Except  as  qualified  by  Walrath  v.  Champion  Min.  Co.,  as  just  ex- 
plained, except  as  further  limited  by  the  doctrine  of  Van  Zandt  v. 
Argentine  Min.  Co.,  giving  a  locator  on  trie  dip  whose  location  is  ex- 
pressly based  thereon  the  part  of  the  dip  within  his  boundary  planes, 
and  except  as  restricted  by  the  prior  dip  rights  of  others,  the  apex  own- 
er may  follow  his  vein  on  its  dip  within  his  extralateral  right  planes 
under  senior  mining  locations  and  patented  claims,  as  well  as  under 
junior.182  Even  under  Van  Zandt  v.  Argentine  Min.  Co.  the  owner  of 

131  COSMOPOLITAN  MIN.  CO.  v.  FOOTE  (C.  C.)  101  Fed.  518.     That  the 
right  to  follow  a  vein  on  its  strike  is  limited  to  the  lines  of  the  location  is 
clear.    Davis  v.  Shepherd,  31  Colo.  141,  72  Pac.  57.    See  cases  in  note  37.  sir  -n. 

132  COLORADO  CENT.  CONSOL.  MIN.  CO.  v.  TURCK,  50  Fed.  888,  2  C. 
O.  A.  67 ;  Id.,  70  Fed.  294,  17  C.  C.  A.  128 ;   Cheesman  v.  Hart  (C.  C.)  42  Fed. 

COST.MIN.L.— 29 


450  SUBSURFACE   RIGHTS.  (Ch.  21 

the  apex  would  have  a  right  of  way  through  the  claim  on  the  dip  to 
get  at  the  dip  still  further  below. 

Vein  Dipping  under  Prior  Agricultural  Grant. 

In  the  only  reported  case  squarely  on  the  point  it  has  been  held 
that  a  vein  cannot  be  followed  on  its  dip  through  a  prior  agricultural 
grant.133  In  another  case  a  trial  judge  announced  the  doctrine  that 
the  vein  could  be  followed  under  such  land ;  but,  as  a  settlement  pend- 
ing the  appeal  enabled  the  upper  court  to  avoid  deciding  the  point,13* 
the  grounds  of  the  decision  are  not  before  us.  Doubtless  the  trial 
judge  in  the  latter  case  followed  the  reasoning  of  Mr.  Lindley,  namely, 
that  the  mining  law  is  but  a  part  of  the  public  land  law,  and  that  an 
agricultural  land  patent  should  confer  no  more  rights  as  against  apex 
owners  than  mining  patents  do.  Mr.  Lindley  insists  that  all  the  fed- 
eral laws  providing  for  the  sale  and  disposal  of  the  public  lands  "are 
essentially  in  pari  materia."  135  His  conclusion  would  seem  to  be 
sound  on  principle  and  should  be  adopted  by  the  courts. 

SAME— "THEORETICAL  APEX." 

118m.  Where  veins  apex  in  land  from  which  they  cannot  be  pursued 
extralaterally,  there  is  some  reason  to  contend  that  the  lo- 
cator of  a  lode  claim  on  the  dip  of  such  a  vein  adjoining  the 
land  in  which  it  apexes  shall  be  deemed  theoretically  to  have 
the  apex  for  extralateral  right  purposes. 

A  land  department  decision  136  raises  a  question  that  is  of  interest, 
namely,  whether  a  vein  apexing  in  an  agricultural  or  other  grant  of 
land,  from  which  it  cannot  be  pursued  extralaterally,  can  be  located 
on  the  dip  in  such  a  way  that  the  dip  locator  will  get  extralateral 
rights.  The  question  is  whether  the  courts  will  "theorize"  an  apex  so 
to  speak,  by  treating  the  part  of  the  dip  just  outside  the  lines  of 
the  grant  containing  the  real  apex  as  if  that  part  really  were  the 

98.  See  DEL  MONTE  MINING  &  MILLING  CO.  v.  LAST  CHANCE  MINING 
&  MILLING  CO.,  171  U.  S.  55,  18  Sup.  Ct.  895,  43  L.  Ed.  72,  where  ore  on  the 
dip  and  under  the  senior  claim,  the  Del  Monte,  was  awarded  to  the  Last 
Chance,  the  junior  claim,  which  owned  the  apex. 

iss  AMADOR  MEDEAN  GOLD  MIN.  CO.  v.  SOUTH  SPRING  HILL  GOLD 
MIN.  CO.  (C.  C.)  36  Fed.  668.  Compare  Paterson  v.  Ogden,  141  Cal.  43,  74 
Pac.  443,  99  Am.  St.  Rep.  31,  where  the  agricultural  land  patent  expressly  re- 
served dip  rights.  The  court  did  not  have  to  pass  on  the  validity  of  that  res- 
ervation, but  seemed  to  think  it  void. 

is*  WEDEKIND  v.  BELL,  26  Nev.  395,  69  Pac.  612.  The  state  report  gives 
the  briefs  of  counsel,  showing  what  the  trial  court  ruled. 

1352  Lindley  on  Mines  (2d  Ed.)  §  612. 

136  WOODS  v.  HOLDEN,  26  Land  Dec.  Dep.  Int.  198. 


§  118n)  EXTRALATERAL   RIGHTS   UNDER   ACT   OF   1872.  431 

apex.  The  term  "theoretical  apex"  should  be  applied  to  such  a  case, 
and  the  term  "judicial  apex"  kept  for  the  case  where  the  junior  claim 
really  does  throw  its  lines  over  the  apex,  albeit  partly  within  the  lines 
of  a  senior  location.ff 

The  question  could  arise  just  as  well  where  the  apex  of  the  vein 
is  wholly  occupied  by  locations  having  end  lines  diverging  on  the  dip. 
For  instance,  in  a  case  such  as  in  Figure  No.  36,  where  the  apex  is 
taken  by  locations  having  their  end  lines  so  directed  that  large  parts 
of  the  dip  belong  to  nobody,  and  yet  none  of  the  real  apex  is  left  to 
locate,  there  is  really  no  reason  why  the  courts  should  not  evolve  a 
theoretical  apex  to  meet  the  situation.137  The  Del  Monte  Case  lets 
each  of  two  conflicting  locations  have  the  same  apex  for  extralateral 
right  purposes,  the  junior  having  it  subject  of  course  to  the  prior 
rights  of  the  senior;  but  that  case  of  "judicial  apex"  is  different  from 
this  case  of  "theoretical  apex,"  because  in  that  case  of  judicial  apex 
the  lines  of  the  junior  claim  actually  embrace  the  apex,  though  subject 
to  the  full  rights  of  the  senior  claim,  while  in  this  case  of  theoretical 
apex  the  lines  of  the  claim  do  not  actually  embrace  the  apex.  It  is,  per- 
haps, wiser  to  adopt  Mr.  Lindley's  attitude,  and  refuse  to  predict  what 
the  courts  will  do.138 


SAME— RIGHTS  OF  GRANTOR  AND  GRANTEE  AFTER  A  GRANT  OF 
PART  OF  A  LOCATED  APEX. 

118n.  The  grantee  of  part  of  a  location  with  an  inclosed  part  of  the 
apex  of  the  located  vein  is  on  principle  entitled  to  extralateral 
rights  Itonuded  by  planes  drawn  parallel  to  the  original  lo- 
cation's end  lines  and  through  the  points  where  the  vein  en- 
ters and  departs  from  the  granted  land. 

The  grantor  nnder  snch  a  grant  onght  on  principle  to  have  f  nil  extra* 
lateral  rights  nnder  the  granted  land,  subject  only  to  the 
grantee's  prior  right  to  veins  apexing  in  the  granted  land; 
but  a  California  case  holds  that  he  is  estopped  by  the  grant 
from  extralateral  pursuit  of  veins  under  the  granted  lands. 

As  a  conveyance  of  a  location  conveys  with  the  apex  of  the  vein 
all  extralateral  rights,  a  conveyance  of  part  of  the  location  contain- 
ing a  portion  of  the  apex  should  convey  pro  tanto  extralateral  rights. 
It  is  admitted,  of  course,  that  the  parties  may  in  their  conveyance 

ft  For  "judicial  apex,"  see  §  118h. 

137  The  land  department  favors  it.  WOODS  v.  HOLD  EN,  26  Land  Dec.  Dep. 
Int.  198 ;  Id.,  27  Land  Dec.  Dep.  Int.  375. 

i38i  Lindley  on  Mines  (2d  Ed.)  p.  5G7,  §  312a. 


452 


SUBSURFACE   RIGHTS. 


(Ch.  21 


expressly  define  their  rights;   but  the  question  is  what  rule  to  apply 
in  the  absence  of  any  such  expression  of  intention. 

FIGURE:  M 


Take  Figure  No.  49,  where  the  owner  of  the  claim  conveys  the  tri- 
angular piece  a — b — c.  Is  the  grantee  to  be  allowed  dip  rights,  or  is  he 
to  be  estopped  from  claiming  them  by  the  fact  that  this  strip  does  not 
have  parallel  end  lines?  The  best  rule  is  that  the  grantee  has  extra- 
lateral  rights  within  planes  drawn  through  the  points  where  the  vein 
crosses  the  grantee's  boundaries  and  parallel  to  the  end  lines  of  the 
grantor's  claim.138  If  the  grantor  has  in  his  remaining  piece  the  apexes 
of  veins  which  dip  under  the  granted  land,  it  would  seem  that  on 
principle  he  should  have  the  right  to  follow  that  dip.  The  same  rea- 
soning that  will  allow  a  subsequent  locator  to  follow  the  dip  of  his 
vein  under  a  prior  patented  claim  should  allow  the  grantor  to  follow 
the  dip  of  his  lodes  under  the  granted  land.  But  a  recent  California 
case  holds  that  the  grantor  is  estopped  to  do  so.140 

139  MONTANA  ORE  PURCHASING  CO.  v.  BOSTON  &  M.  CONSOL.  COP- 
PER &  SILVER  MIN.  CO.,  27  Mont.  288,  536,  70  Pac.  1114,  71  Pac.  1005.  But 
see  Boston  &  M.  Oonsol.  Copper  &  Silver  Min.  Co.  v.  Montana  Ore-Purchasing 
Co.  (C.  C.)  89  Fed.  529. 

1*0  Riiey  v.  North  Star  Min.  Co.  (Cal.)  93  Pac.  194. 


§  119)  CROSS  VEINS.  453 


CROSS  VEINS. 

119.  Veins  which  cross  on  their  dip  belong  to  the  locators  having  the 
apexes,  except  that  the  ore  at  the  space  of  intersection  be- 
longs to  the  senior  location. 

Veins  which  cross  on  their  strike  likewise  belong  to  the  locators 
having  the  apexes;  but  under  the  construction  given  the  fed- 
eral statute  there  is  a  right  of  way  in  the  junior  locator 
through  the  space  of  intersection  from  one  part  of  his  claim 
to  another.  "Whether  that  right  of  way  is  confined  to  the 
course  of  the  vein,  or  is  to  be  exercised  where  the  junior 
claimant  finds  it  most  convenient  within  the  conflict  area 
of  the  two  claims,  is  in  doubt. 


"Where  two  or  more  veins  intersect  or  cross  each  other,  priority 
of  title  shall  govern,  and  such  prior  location  shall  be  entitled  to  all  ore 
or  mineral  contained  within  the  space  of  intersection ;  but  the  subse- 
quent location  shall  have  the  right  of  way  through  the  space  of  in- 
tersection for  the  purposes  of  the  convenient  working  of  the  mine." 
Rev.  St.  U.  S.  §  2336  (U.  S.  Comp.  St.  1901,  p.  1436). 

Considering  that  the  next  sentence  of  the  above  section  of  the  Re- 
vised Statutes  treats  of  veins  uniting  on  the  dip,  there  is  very  little 
doubt  that,  if  the  question  were  an  original  one  to-day,  the  above  por- 
tion of  the  section  would  be  held  to  apply  only  to  veins  crossing  on  the 
dip.  Unfortunately,  however,  it  was  decided  early  in  Colorado  that 
the  section  governed  the  case  of  veins  crossing  on  the  strike ; 141  and 
while  the  Colorado  court,  with  the  affirmation  of  the  Supreme  Court 
of  the  United  States,  has  reversed  that  earlier  ruling  142  so  far  as  to 
give  the  first  locator  of  a  claim  all  veins  within  his  boundaries,  it 
still  seems  to  be  true  that,  where  the  junior  locator's  lines  are  laid 
along  his  vein  across  the  senior  claim,  the  junior  locator  is  deemed 
entitled  to  a  right  of  way  through  the  senior's  claim  from  one  segment 
of  the  junior's  bisected  claim  to  the  other.  In  thjs  view  of  the  matter, 
"space  of  intersection,"  in  the  federal  statute,  means  the  space  in  the 
senior  claim  within  junior  lines,  instead  of  meaning,  as  it  ought,  if 


niBranagan  v.  Dulaney,  8  Colo.  408,  8  Pac.  669;  Hall  v.  Equator  Mining 
&  Smelting  Co.  (U.  S.)  Fed.  Cas.  No.  5,931.  On  the  effect  of  a  contract  affect- 
ing conflicting  ground,  when  this  case  was  law,  see  Bogart  v.  Amanda  Consol. 
Gold  Min.  Co.,  32  Colo.  32,  74  Pac.  882. 

142  CALHOUN  GOLD  MIN.  CO.  v.  AJAX  GOLD  MIN.  CO.,  27  Colo.  1,  59 
Pac.  607,  50  L.  R.  A.  209,  83  Am.  St.  Rep.  17;  Id.,  182  U.  S.  499,  21  Sup/Ct 
885,  45  L.  Ed.  1200. 


454  SUBSURFACE   RIGHTS.  (Ch.  21 

applicable  at  all  to  veins  crossing  on  their  strike,  the  space  where  the 
veins  actually  intersect  in  crossing  on  the  strike. JJ 

Now  that  Branagan  v.  Dulaney,  which  allowed  the  junior  locator  to 
take  all  the  ore  on  the  cross  vein  within  the  senior's  lines,  save  only 
where  the  veins  actually  intersected  on  their  strike,  has  been  re- 
pudiated, the  fact  that  a  right  of  way  through  the  senior  claim  still 
exists  on  the  strike  of  the  cross  vein  or  through  the  space  of  claim  in- 
tersection seems  a  small  matter.143 


$$In  CALHOUN  GOLD  MIN.  CO.  v.  AJAX  GOLD  MIN.  CO.,  supra,  the 
Colorado  court,  in  speaking  of  the  cross  vein  claimant,  said:  "But,  if  the  ex- 
pression 'space  of  intersection'  is  limited  to  the  intersection  of  veins,  as  the 
space  through  which  he  should  have  a  right  of  way  for  the  convenient  working 
of  his  mine,  it  would  be  of  no  avail,  for  he  would  have  no  right  under  which 
he  could  reach  the  easement;  and  so,  again,  in  order  to  recognize  one  which 
would  be  of  any  value  to  the  junior  cross  claimant,  the  space  of  intersection 
must  also  mean  the  intersection  of  the  claims."  27  Colo.  1,  19,  59  Pac.  607,  615, 
50  L,  R.  A.  209,  83  Am.  St.  Rep.  17.  That  argument,  however,  contains  a 
false  assumption.  If  an  easement  through  the  space  of  intersection  of  veins 
ia  given,  that  would  seem  necessarily  to  imply  an  easement  from  one  part  of 
the  junior  cross  claim  along  the  cross  vein,  to  and  through  the  space  of  in- 
tersection of  veins,  and  thence  along  the  cross  vein  to  the  other  part  of  the 
junior  cross  claim.  Assuming,  then,  that  the  statute  was  meant  to  apply 
to  veins  crossing  on  their  strikes,  the  controversy  must  be  as  to  whether  the 
easement  of  a  right  of  way  through  senior  ground  must  be  exercised  by  the 
cross  claimant  only  in  and  along  the  cross  vein,  or  whether  he  may  exercise 
that  easement  at  the  most  convenient  place  for  him  in  the  space  of  intersec- 
tion of  the  two  claims.  It  is  to  be  regretted  that  the  statute  was  ever  con- 
strued to  give  an  easement  in  the  case  of  veins  crossing  on  their  strikes.  The 
cross  vein  statute  appears  to  have  been  meant  to  apply  only  to  veins  crossing 
on  their  dips. 

1*3  The  Supreme  Court  of  the  United  States  expressly  refused  to  say  wheth- 
er the  right  of  way  was  only  through  the  vein,  as  held  in  Arizona,  California, 
and  Montana,  or  was  through  the  space  of  intersection  of  the  claim,  as  held 
in  Colorado.  CALHOUN  GOLD  MIN.  CO.  v.  AJAX  GOLD  MIN.  CO.,  182  U. 
S.  499,  21  Sup.  Ot.  885,  45  L.  Ed.  1200.  See  WATER  VALE  MIN.  CO.  v.  LEACH, 
4  Ariz.  34,  33  Pac.  418;  Wilhelm  v.  Silvester,  101  Cal.  358,  35  Pac.  997;  Pardee 
v.  Murray,  4  Mont.  234,  2  Pac.  16.  It  has  been  said  of  CALHOUN  GOLD  MIN. 
CO.  v.  AJAX  GOLD  MIN.  CO.,  supra,  that  "under  the  decision  of  the  Supreme : 
Court  of  the  United  States  four  questions  growing  out  of  the  two  sections  of  ( 
the  statute  referred  to  are  still  undetermined:  (1)  Does  section  2330,  Rev.  St.! 
U.  S.  (U.  S.  Comp.  St.  1901,  p.  1436),  apply  to  veins  located  under  the  law  of 
1866  which  cross  each  other  on  their  course  or  strike  within  the  limits  of  the; 
older  location?  (2)  If  so,  does  the  'space  of  intersection'  mean  the  intersec- 
tion of  the  veins  or  of,  the  claims?  (3)  If  the  'space  of  intersection'  means- 
the  intersection  of  the  claims,  has  the  junior  locator  the  right  of  way  withia 
the  claim  entirely  across  the  location?  (4)  Can  one  locate  a  vein  which  crosses 
another  on  its  strike  within  the  surface  boundaries  of  a  valid  location  in  such 
manner  as  to  leave  it  entirely  subdivided  by  the  older  location?"  27  Cyc.  586. 


§119) 


CROSS  VEINS. 

FIGURE:  ho, 50. 


455 


Figure  No.   50  represents  the  situation   dealt  with  by  the  courts 
where  the  veins  cross  on  their  strikes. 

FIGURE.  No.  51. 

SURFACE. 


Figure  No.  51  represents  veins  crossing  on  the  dip.*** 

***  In  Stinchfield  v.  Gillis,  96  Cal.  33,  30  Pac.  839,  veins  crossed  on  the  dip, 
and  the  question  about  the  ownership  of  the  ore  at  the  space  of  intersection 
arose  between  the  grantee  of  part  of  a  mining  claim  and  his  grantor.  As  the 
intersection  occurred  under  the  granted  land,  the  ore  at  the  place  of  intersec- 
tion was  awarded  to  the  grantee,  although  the  grantor's  location  antedated  a 
relocation  by  the  grantee.  In  Stinchfield  v.  Gillis,  107  Cal.  84,  40  Pac.  98,  the 
grantee's  right  was  reaffirmed,  despite  the  fact  that  the  location  of  the  gran- 
tor was  senior,  and  did  not,  as  had  been  supposed  on  the  earlier  appeal,  consist. 


456  SUBSURFACE   RIGHTS.  (Cll.  21 


CROSSING  OF  EXTRAIiATERAIi  RIGHTS  ON  DIP  OF  SAME  VEIN. 

12O.  Where,  owing  to  the  shape  of  two  claims  located  on  a  vein,  their 
flip  rights  cross  each  other,  the  senior  locator  takes  the  ore 
in  the  space  of  intersection  of  the  clips,  but  the  junior  locator 
has  an  easement  to  go  through  to  get  the  ore  on  the  dip  of 
his  vein  beyond. 

FIGURE.  Mo.  5Z. 


-X DI^OV^RY    /VeLN . 

SENIOR  \       /  JUNIOR  / 


^ 

N\        / 

•V' 

*        ^ 

/  \           / 

N               / 

\/ 

'          \         /  *  \ 

Analogous  to  the  case  of  veins  crossing  on  the  dip  is  the  case  of 
the  crossing  on  the  same  vein  of  dip  rights.  It  is  clear,  of  course, 
that  the  senior  claim  is  protected;14*  but  does  the  junior  claim  get 
the  part  beyond  the  point  of  crossing,  and  has  it  a  right  of  way  through 
the  space  of  intersection?  It  has  been  held,  and  properly,  it  would 
seem,  that  the  junior  both  owns  the  segment  beyond  the  space  of  in- 
tersection and  has  an  easement  to  go  through  the  space  of  intersection 
to  get  at  it.145  The  principle  of  the  statute  covering  lodes  crossing 
on  the  dip  is  applied,  on  the  theory  that  the  statute  is  simply  declaratory 
of  that  law  of  mining  which  would  apply  in  the  absence  of  a  statute. 
The  situation  is  represented  in  Figure  No.  52. 

merely  of  the  balance  of  the  claim  out  of  which  the  grant  was  made.  The 
fact  that  the  grantor  and  his  predecessor  had  treated  the  claim  of  which  part 
had  been  conveyed  and  the  adjoining  claim  on  which  the  grantor  was  relying 
.as  together  making  one  claim  led  the  court  to  apply  the  same  rule  as  if  they 
had  actually  constituted  one  claim. 

i**  ARGENTINE  MIN.' CO.  v.  TERRIBLE  MIN.  CO.,  122  U.  S.  478,  7  Sup. 
Ct  1356,  1140.  See  Jefferson  Min.  Co.  v.  Anchoria-Leland  Min.  &  Mill.  Co., 
-32  Colo.  176,  75  Pac.  1070,  64  L.  R.  A.  925. 

us  EMPIRE  STATE-IDAHO  MINING  &  DEVELOPING  CO.  v.  BUNKER 
HILL  &  S.  MINING  &  CONCENTRATING  CO.,  121  Fed.  973,  58  C.  C.  A. 
311;  BUNKER  HILL  &  SULLIVAN  MINING  &  CONCENTRATING  CO.  v. 
EMPIRE  STATE-IDAHO  MINING  &  DEVELOPING  CO.  (C.  C.)  134  Fed.  268 ; 
DAVIS  v.  SHEPHERD,  31  Oolo.  141,  72  Pac.  57. 


§§  121-122)  VEINS   UNITING   ON   DIP  AND   STRIKE.  457 


VEINS    UNITING   ON    THE    DIP    AND    ON    THE    STRIKE. 

121.  "Where  two  or  more  veins  unite  on  the  dip,  the  senior  location 

takes   the   compound  vein  below   the   point   of  union,    as   well 
as  the  space  of  union. 

122.  Where   two   or  more   veins  unite   on  the   strike,    they  belong  to 

the  senior  location  in  which  they  apex. 

Feins  Uniting  on  the  Dip. 

Rev.  St.  U.  S.  §  2336  (U.  S.  Comp.  St.  1901,  p.  1436) :  "  *  *  * 
Where  two  or  more  veins  unite,  the  oldest  or  prior  location  shall 
take  the  vein  below  the  point  of  union,  including  all  the  space  of  in- 

FIGURE.  No.  53. 


Figure  No.  53  represents  veins  uniting  on  the  dip.  In  such  case 
the  first  location,  without  regard  to  which  location  was  first  patented, 
takes  the  whole  vein  below  the  point  of  union ; 148  and  that  is  true, 
regardless  of  whether,  beyond  the  point  of  union,  it  passes  under  still 
a  third  claim.147 

Feins  Uniting  on  the  Strike. 

Veins  which  unite  on  the  strike  are  owned,  of  course,  by  the  senior 
location  or  patented  claim  within  the  lines  of  which  their  united  apexes 
are  found.148 

i4«  LITTLE  JOSEPHINE  MIN.  CO.  v.  FULLERTON,  58  Fed.  521,  7  C. 
C.  A.  340;  CONSOLIDATED  WYOMING  GOLD  MIN.  CO.  v.  CHAM- 
PION MIN.  CO.  (C.  C.)  63  Fed.  540.  See  Champion  Min.  Co.  v.  Consolidated 
Wyoming  Gold  Min.  Co.,  75  Cal.  78,  16  Pac.  513. 

1*7  ROXANNA  GOLD  MINING  &  TUNNELING  CO.  v.  CONE  (C.  C.)  100 
Fed.  168. 

148  LEE  v.  STAHL,  13  Oolo.  174,  22  Pac.  436;  Book  v.  Justice  Min.  Co.  (C. 
C.)  58  Fed.  106.  That  is  because  the  word  "below"  in  the  statute  cannot  be 
construed  to  mean  "beyond."  LEE  v.  STAHL,  supra. 


458  SUBSURFACE    RIGHTS.  (Ch.  21 


EXTRALATERAL      RIGHT      COMPROMISE      AGREEMENTS      AND 

DEEDS. 

123.  Relative  extralateral  and  intralimital  rights  may  be  adjusted 
by  compromise  agreements  and  deeds.  Such  adjustments  are 
most  likely  to  occur  during  adverse  suits. 

It  is,  of  course,  possible  for  the  owners  of  adjoining  mining  claims 
*o  adjust  by  deed  their  relative  extralateral  rights.  Where  an  agree- 
ment is  entered  into  which  awards  one  mine  owner  extralateral  rights 
under  an  adjoining  mine  owner's  land,  and  deeds  are  executed  to  car- 
ry out  the  agreement,  the  right  of  the  first  owner  to  the  extralateral 
pursuit  of  his  vein  under  the  second  one's  land  cannot  be  denied  on  the 
ground  that  the  end  lines  of  his  claim  are  not  parallel.149  So,  where 
an  end  line  is  fixed  by  compromise,  no  right  beyond  it  can  be  claim- 
ed;150 and,  if  the  parties  so  stipulate,  each  may  forego  extralateral 
rights  under  the  land  of  the  other.151  Where  the  owner  of  a  pat- 
ented quartz  mine  gave  to  the  owner  of  certain  agricultural  land  a 
quitclaim  deed  to  a  portion  of  subsequently  patented  agricultural  land 
described  as  lying  east  of  the  patented  quartz  mine,  it  was  held  by 
the  state  court  that  the  deed  conveyed  no  interest  in  the  dip  of  the 
patented  quartz  vein  beneath  the  agricultural  surface; 152  and  the 
United  States  Supreme  Court  followed  the  state  court's  construction 
of  the  deed.153  So  rights  to  cross  veins  may  be  changed  by  con- 
tract.154 

149  RICHMOND  MIN.  CO.   OF   NEVADA  v.   EUREKA  CONSOLIDATED 
MIN.  CO.,  103  U.  S.  839,  26  L.  Ed.  557. 

150  KENNEDY  MINING  &  MILLING  CO.  v.   ARGONAUT   MINING   CO., 
189  U.  S.  1,  23  Sup.  Ct.  501,  47  L.  Ed.  685.     Where  a  patent  is  issued  for  a 
placer,   "excepting  and  excluding     *     *     *     all  that  portion  of  the  surface 
ground  herein  described  which  is  embraced   by"   a  lode  named,  the  placer 
patentee  does  not  get  title  to  the  veins  and  lodes  which  apex  beneath  the  ex- 
cepted  surface;    for  not  only  the  surface  area  embraced  in  the  conflict  area, 
but  also  all  veins  or  lodes  beneath  such  surface  having  their  tops  or  apexes 
within  the  vertical  lines  thereof,  are  carved  out  of  the  placer  grant  by  the 
exception.     LELL1E  LODE  MINING  CLAIM,  31  Land  Dec.  Dep.  Int.  21. 

isi  MONTANA  MIN.  CO.  v.  ST.  LOUIS  MIN.  &  MILL.  CO.,  204  U.  S. 
204,  27  Sup.  Ct  254,  51  L.  Ed.  444.  See  Montana  Ore  Purchasing  Co.  v.  Boston 
&  M.  Consol.  Copper  &  Silver  Min.  Co.,  27  Mont.  536,  71  Pac.  1005 ;  RILEY 
v.  NORTH  STAR  MIN.  CO.  (Oal.)  93  Pac.  194. 

152  Central   Eureka  Min.   Co.  v.   East  Central   Eureka   Min.   Co.,  146  Cal. 
147,  79  Pac.  834,  9  L.  R.  A.  (N.  S.)  940. 

153  EAST  CENTRAL  EUREKA  MIN.  CO.  v.  CENTRAL  EUREKA  -MIN. 
CO.,  204  U.  S.  266,  27  Sup.  Ct.  258,  51  L.  Ed.  476. 

is*  Coffee  v.  Emigh,  15  Colo.  184,  25  Pac.  83,  10  L.  R.  A.  125. 


§124) 


ILLUSTRATIVE    DIAGRAM. 


459 


DIAGRAM  TO  ILLUSTRATE  RELATIVE  EXTRALATERAL  RIGHTS. 

124.    Relative   extralateral  rights  may  best  be  illustrated  by   Figure 
No.  54. 

A  good  diagram  to  illustrate  relative  extralateral  rights  is  found 
in  Figure  No.  54. 


figure  NO  .   54 


Let  it  be  assumed  that  the  Mascot  claim  was  located  under  the 
act  of  1866  and  all  the  others  under  the  act  of  1872.  Assume  that  the 
Mascot  extension  claims  were  located  in  the  order  indicated  by  their 
names,  and  that  after  they  were  located  the  Hoodoo  claim  was  lo- 
cated, and  then  the  Tramp.  Let  vein  a — b — b'  be  the  original  discov- 
ery vein  on  all  but  the  Hoodoo  and  Tramp  claims.  Let  vein  c — d  be 
the  discovery  vein  of  the  Tramp,  and  the  broad  vein,  x — y,  that  of  the 
Hoodoo.  Veins  e — f  and  g — h  are  secondary  veins,  and  b — b"  is  a  split- 
off  part  or  spur  of  the  vein  a — b — b'.  Let  vein  a — b  dip  to  the  south, 
b — b"  and  e — f  dip  southwest,  g — h  dip  southeast,  and  c — d  dips  west. 
The  extralateral  rights  of  the  claims  then  are : 

Mascot.  As  the  Mascot  was  located  under  the  act  of  1866,  the  end 
lines  need  not  be  parallel  to  give  extralateral  rights.  The  first  question 
is  as  to  the  discovery  vein,  b — b'.  The  general  course  of  the  vein  in 
the  Mascot  must  be  established,  and  parallel  planes  are  then  drawn 
at  right  angles  to  that  course  through  the  points  where  the  vein  en- 
ters and  leaves  the  surface  boundaries.  Then  with  reference  to  the 
secondary  vein,  *g — h,  we  note  that  while  under  the  act  of  1866  it 
did  not  belong  to  the  owner  of  the  Mascot,  and  therefore  had  no 
extralateral  rights,  the  act  of  1872  changed  that  rule  by  express  pro- 
vision. Owing  to  the  way  g — h  lies  in  the  claim,  however,  it  probably 
could  have  no  extralateral  rights  if  the  end  lines  fixed  for  b — b'  gov- 
ern, as  to  try  to  award  them  would  be  to  give  the  strike,  not  the  dip, 


460  SUBSURFACE    RIGHTS.  (Ch.  21 

and  even  if  Ajax  Min.  Co.  v.  Hilkey155  is  to  be  followed  the  same 
difficulty  would  exist.  It  would  seem  to  be  clear  that  g — h  has  no 
extralateral  rights. 

Mascot  Extension  No.  1.  The  end  lines  would  be  extended  to  fix 
the  planes  for  extralateral  rights  on  vein  a — b — b/  These  rights 
would  be  subject,  of  course,  to  the  prior  rights,  if  any,  of  the  Mascot. 
Planes  parallel  to  the  end  lines  would  be  drawn  through  the  points 
where  vein  c — d  enters  and  leaves  the  location  to  fix  the  extralateral 
rights  on  that  vein.  Vein  b — b",  being  parallel  with  the  end  lines, 
could  enjoy  no  extralateral  rights,  as  to  attempt  to  give  them  would 
award  the  strike,  and  not  the  dip. 

Mascot  Extension  No.  2.  As  to  vein  a — b  the  question  of  extra- 
lateral  rights  depends  upon  whether  Mr.  Lindley's  view  is  adopted, 
that  even  under  the  act  of  1872  such  rights  may  exist  without  parallel 
end  lines,  providing  those  lines  converge  on  the  dip.  If  his  view  is 
adopted,  as  it  ought  to  be,  the  rights  on  vein  a — b  would  be  limited 
by  the  converging  end  lines  of  the  claim  extended  to  their  meeting 
point.  Whether  the  vein  e — f  would  have  extralateral  rights  is  doubt- 
ful, however.  The  rule  for  the  broad  vein,  x — y,  would  probably  ap- 
ply. On  the  broad  vein,  x — y,  lines  would  probably  be  drawn  through 
its  points  of  entrance  into  and  departure  from  the  claim  parallel  to 
the  respective  converging-  end  lines  of  the  claim,  and  these  new  lines 
extended  to  their  point  of  convergence.  On  one  view  of  Walrath  v. 
Champion  Min.  Co.  all  the  dip  of  the  broad  vein  and  of  vein  e — f 
could  be  claimed  by  Mascot  Extension  No.  2  within  the  converging 
end  lines  of  the  location  as  extended ;  but  that  view  must  be  repudiated. 

Mascot  Extension  No.  3.  Find  the  end  lines  established  as  such 
by  the  locator  by  looking  at  his  notices,  end  line  or  side  line  posts,  etc., 
and  then  draw  lines  parallel  to  those  end  lines  through  the  points 
where  the  discovery  vein,  a — b,  enters  and  departs  from  the  location. 
That  will  fix  the  extralateral  right  lines  on  that  vein.  Then,  if  e — f 
is  not  parallel  with  the  claim's  end  lines,  extralateral  rights  will  ex- 
ist on  it.  If  Ajax  Min.  Co.  v.  Hilkey156  is  to  be  followed  as  it  should 
be,  these  rights  will  be  bounded  by  the  claim's  end  lines  extended. 
If  it  is  not  to  be  followed,  they  will  be  bounded  by  the  end  lines 
fixed  for  vein  a — b  extended.  Of  course,  if  vein  e — f  turns  out 
to  be  parallel  to  the  claim's  end  lines,  no  extralateral  rights  on  it 
can  be  allowed,  as  to  attempt  to  give  them  would  be  to  award  the 
strike  of  the  vein.  What  has  been  said  of  these  other  veins  will  apply 
to  the  broad  vein  x — y. 

15531  Colo.  131,  72  Pac.  447,  62  L.  R.  A.  555,  102  Am.  St.  Rep.  23. 

156  Id. 


§  124)  ILLUSTRATIVE   DIAGRAM.  461 

Mascot  Extension  No.  4-  In  this  claim  the  side  lines  are  the  end 
lines,  and  they  are  parallel,  so  there  should  be  extralateral  rights  on 
vein  a — b.  Messrs.  Morrison  and  De  Soto  would  not  allow  the  vein 
to  be  pursued  beyond  the  located  end  line;  but,  as  that  has  become 
a  side  line  for  this  purpose,  pursuit  of  the  vein  beyond  it  and  within 
the  planes  formed  by  extending  the  other  and  parallel  lines  is  doubt- 
less permitted.  If  vein  a — b  may  be  pursued  beyond  the  claim's  ver- 
tical boundaries,  vein  x — y  may  be.  As  to  the  rule  with  reference  to 
that  vein  the  same  question  about  Walrath  v.  Champion  Min.  Co. 
arises  as  did  with  reference  to  Mascot  Extension  No.  2.  The  true 
way  of  determining  the  rights  would  seem  to  be  to  draw  planes  paral- 
lel to  the  extralateral  right  end  lines  through  the  extreme  points  of 
entrance  and  exit  of  x — y,  provided  that  doing  so  will  not  give  extra- 
lateral  pursuit  of  the  strike  of  the  vein. 

Hoodoo.  The  Hoodoo  gets  all  extralateral  rights  in  x — y  within 
the  extended  end  line  planes  of  the  Hoodoo  not  already  awarded  to 
the  Mascot  Extension  No.  2  and  to  the  Mascot  Extension  No.  3. 

The  Tramp.  The  Tramp  gets  all  extralateral  rights  on  the  vein 
c — d  within  the  Tramp's  end  line  planes  extended  not  already  award- 
ed to  the  Mascot  Extension  No.  1.  The  Tramp  also  gets  whatever 
"cross  vein"  rights  there  may  be  under  the  federal  statutes.187 

IB?  AS  to  these,  see  the  discussion  of  cross  veins,  supra,  §  119. 


462  COAL,  TIMBER,  AND   STONE   LAND   ENTRIES,  ETC.  (Ch.  22 

CHAPTER  XXII. 
COAL  LAND  AND  TIMBER  AND  STONE  LAND  ENTRIES  AND  PATENTS. 

125.  Coal  Land   Entries. 
125a.  Ordinary  Cash  Entry. 

125b.          Cash  Entry  under  a  Preference  Right. 
125c.          Indian  Coal  Land  Leases. 

126.  Timber  and  Stone  Land  Entries. 

COAL  LAND  ENTRIES. 

125.  Coal  lands  are  entered  by  legal  subdivisions  by  qualified  in- 
divlduals  and  associations.  They  may  be  entered  (!)  by  ordi- 
nary cash  entry,  and  (2)  by  cash  entry  nnder  preference  right. 

Coal  lands  1  are  entered  by  legal  subdivisions.2  Any  individual  who 
is  a  citizen  of  the  United  States,  or  has  declared  himself  to  be  such, 
and  who  is  21  years  of  age,  may  enter  by  such  subdivisions,  not  to  ex- 
ceed 160  acres.3  Any  association,  which  includes  a  corporation,*  com- 
posed of  individuals  qualified  to  make  entry  as  individuals,  may  enter 
not  to  exceed  320  acres  by  private  entry, 5  and  if  the  association  con- 
sists of  not  less  than  four  qualified  persons,  who  shall  have  expended 
not  less  than  $5,000  in  working  and  improving  a  coal  mine  or  mines,  it 
may  enter  not  to  exceed  640  acres,  including  such  mining  improve- 
ments.6 The  right  to  purchase  coal  lands  can  be  exercised  but  once, 
whether  the  person  exercising  it  did  so  alone  or  as  a  member  of  an 
association,  and  no  entry  can  be  allowed  to  an  association  which  has 
in  it  a  single  person  disqualified.7  Moreover,  in  a  recent  case  where 

1  "Lands   containing  lignites  are  included   under   the  term   'coal  lands.' " 
Coal  Lands  Regulations,  part  1,  rule  2.     See  Appendix. 

"The  lands  must  be  vacant  and  unappropriated,  and  must  contain  work- 
able deposits  of  coal,  and  must  not  be  valuable  for  mines  of  gold,  silver,  or 
copper."  Id. 

2  Id. 

3  Rev.  St.  U.  S.  §  2347  (U.  S.  Comp.  St.  1901,  p.  1440) ;    Coal  Land  Regula- 
tions, part  1,  rule  3. 

4  UNITED  STATES  v.  TRINIDAD  COAL  &  COKING  CO.,  137  U.  S.  160, 
11  Sup.  Ot.  57,  34  L.  Ed.  640. 

s  Rev.  St.  U.  S.  §  2347  (U.  S.  Comp.  St.  1901,  p.  1440) ;  Coal  Land  Regula- 
tions, part  1,  rule  3. 

«  Rev.  St.  U.  S.  §  2348  (U.  S.  Comp.  St.  1901,  p.  1440) ;  Coal  Land  Regula- 
tions, part  1,  rule  4. 

7  Rev.  St.  U.  S.  §  2350  (U.  S.  Comp.  St.  1901,  p.  1441) ;  Coal  Land  Regula- 
tions, part  1,  rule  5. 

"The  right  so  to  enter  or  hold  is  exhausted,  whether  an  entry  embraces  In 


§  125a)  COAL   LAND    ENTRIES.  403 

a  wife  sought  to  purchase  coal  lands,  the  land  department  said:  "The 
provisions  of  the  coal  land  laws  fully  warrant  the  requirement  in  all 
cases  that  in  entries  thereunder  the  entryman  shall  show  under  oath 
that  the  entry  is  made  in  good  faith  in  his  own  and  individual  interest, 
and  not  in  the  interest,  directly  or  indirectly,  in  whole  or  in  part,  of 
any  other  person  or  persons  whomsoever."  8 

The  coal  land  laws  recognize  two  kinds  of  entry:  (1)  Ordinary  cash 
entry;  and  (2)  cash  entry  under  a  preference  right. 

SAME— ORDINARY  CASH  ENTRY. 

125a.  Ordinary  cash  entry  is  without  previous  occupation  or  improve- 
ment of  the  land,  and  the  steps  in  it  are  (1)  the  filing  of  a 
sworn  application;  (2)  the  posting  and  publication  of  a  no- 
tice of  application;  (3)  the  proofs  of  the  completed  posting 
and  publication;  (4)  the  determination  in  the  land  office  of 
adverse  claims  and  protests;  (5)  the  report  by  the  chiefs 
of  field  division  of  special  agents  of  the  land  department; 
(6)  the  register's  certificate  for  entry  and  the  receiver's  re- 
ceipt; (7)  the  patent. 

The  ordinary  cash  entry  may  be  made  without  previous  occupation 
or  improvement  of  the  coal  land.  To  enter  the  lands  the  entryman 
must  make  oath  to  an  application  prescribed  by  the  land  department 
showing  his  qualifications  to  purchase,  the  fact  that  no  part  of  the 
land  is  in  the  possession  of  anybody  else,  and  that  it  is  chiefly  valuable 
for  its  coal  deposits.9  Upon  the  filing  of  this  application,  the  applicant 
is  required,  at  his  own  expense,  to  publish  for  30  days  a  notice  of  the 
application  in  a  form  prescribed  by  the  land  department.  The  notice 
must  be  published  "in  a  newspaper  nearest  the  lands,  to  be  designated 
by  the  register,"  and  during  the  period  of  publication  "a  similar  notice 

any  instance  the  maximum  area  allowed  by  the  law  or  less;  also  by  the 
acquisition  of  a  preference  right  of  entry,  unless  sufficient  cause  for  the 
abandonment  thereof  is  shown."  Id.  See  UNITED  STATES  v.  TRINIDAD 
COAL  &  COKING  CO.,  137  U.  S.  160,  11  Sup.  Ct.  57,  34  L.  Ed.  640. 

s  Jessie  E.  Oviatt,  35  Land  Dec.  Dep.  Int.  235,  238.  The  ruling  was  that, 
in  a  state  where  by  virtue  of  the  marriage  a  husband  had  no  vested  interest 
in  his  wife's  property,  she  could  enter  coal  lands  for  herself.  See,  also,  John- 
son v.  Leonhard,  1  Wash.  St.  564,  20  Pac.  591.  But  on  the  essentials  of  crim- 
inal conspiracy  in  the  entry  of  coal  lands,  see  United  States  v.  Keitel  (D.  C.) 
157  Fed.  396;  Pereles  v.  Weil  (D.  C.)  157  Fed.  419;  Arnold  v.  Weil  (D.  C.)  157 
Fed.  429 ;  United  States  v.  Robbins  (D.  C.)  157  Fed.  999.  Compare  William- 
son v.  United  States,  207  U.  S.  425,  28  Sup.  Ct.  163,  52  L.  Ed.  278. 

»  Coal  Land  Regulations,  part  1,  rule  10,  contains  the  form  of  application. 
By  rule  16  the  verification  must  take  place  in  the  district  where  the  land  is 
situated  and  before  the  register  or  receiver  in  that  district. 


464  COAL,  TIMBER,  AND   STONE    LAND   ENTRIES,  ETC.  (Ch.  22 

must  be  posted  in  the  local  land  office  and  in  a  conspicuous  place  on 
the  land."  10  Proofs  of  publication  of  the  notice  and  of  its  conspicuous 
and  continued  posting  on  the  land  must  be  furnished,  and  the  register 
must  add  his  certificate  that  the  notice  remained  posted  in  his  office.11 
The  notice  is  a  call  for  protests  and  adverse  claims,  and  if  any  are  filed 
before  entry  the  local  officers  will  hear  them ;  but  after  entry  the  local 
officers  can  only  forward  the  papers  to  the  General  Land  Office  for 
instructions.12  An  entry  will  in  no  case  be  allowed  until  the  proofs 
of  publication  of  notice  and  of  posting  are  filed.13  If  the  specified 
proofs  are  not  furnished,  and  the  purchase  price  is  not  tendered,  with- 
in 30  days  after  the  expiration  of  the  period  of  newspaper  publication, 
the  local  land  officers  must  reject  the  application,  subject  to  appeal.14 
"Furthermore,  in  the  exercise  of  a  preference  right  to  purchase,  no 
part  of  the  30-day  period  specified  herein  may  extend  beyond  the  year 
fixed  by  the  statute."  16 

When  the  requisite  .proofs  are  furnished,  and  all  adverse  claims  and 
protests  are  disposed  of,  and  the  register  finds  both  that  the  tract  ap- 
plied for  is  vacant,  surveyed,  and  unappropriated,  and  that  the  claim- 
ant has  complied  with  all  the  coal  land  laws  and  regulations,  the 
register  will  certify  the  facts  to  the  receiver,  stating  the  prescribed 
purchase  price  for  the  land,  and  the  applicant  must  then  pay  the 
amount  of  purchase  money.16  Registers  and  receivers  will  not  issue 
final  certificates,  or  their  equivalents,  until  notice  has  been  given  to  trie 

10  Coal  Land  Regulations,  part  1,  rule  17,  19. 

11  Coal  Land  Regulations,  part  1,  rule  18. 

12  Coal  Land  Regulations,  part  1,  rules  8,  9.    The  decision  of  the  Interior  De- 
partment in  canceling  an  entry  on  coal  land,  permitting  an  amendment  of  an- 
other entry,  and  issuing  a  patent  on  the  latter  entry,  cannot  be  collaterally  at- 
tacked.   Quinn  v.  Baldwin  Star  Coal  Co.,  19  Colo.  App.  497,  76  Pac.  552. 

is  Coal  Land  Regulations,  part  1,  rule  18. 

i*  Coal  Land  Regulations,  part  1,  rule  18,  as  amended  November  30,  1907. 

IB  id. 

is  Coal  Land  Regulations,  part  1,  rule  20.  The  price  is  fixed  by  statute  with 
reference  to  completed  railroads.  The  term  "completed  railroad"  is  held  to 
mean  "a  railroad  actually  constructed,  equipped,  and  operating  at  the  date 
of  entry."  Coal  Land  Regulations,  part  1,  rule  6.  The  price  is  not  less 
than  $10  per  acre  where  the  land  is  situated  more  than  15  miles  from  any 
completed  railroad,  and  not  less  than  $20  per  acre  where  it  is  within  15  miles 
of  such  road.  Coal  Land  Regulations,  part  1,  rule  12;  Rev.  St.  U.  S.  §  2347  (U. 
S.  Comp.  St.  1901,  p.  1440).  The  distance  is  measured  from  the  roadbed  and 
not  from  the  nearest  shipping  point.  Clinton  S.  Conant,  29  Land  Dec.  Dep. 
Int.  637.  The  Commissioner  of  the  General  Land  Office  will  furnish  informa- 
tion from  time  to  time  to  the  registers  and  receivers  showing  the  coal  lands 
for  sale,  with  a  schedule  of  prices  for  them.  The  -coal  entries  are  to  be  al- 
lowed at  the  minimum  prices  stated  above,  except  that  lands  known  to  con- 
tain workable  deposits  of  coal  and  so  designated  on  the  maps  furnished  shall 


§  125b)  COAL   LAND   ENTRIES.  4.65 

chiefs  of  field  division  of  special  agents,  and  the  latter  have  returned  a 
copy  of  the  notice  with  an  indorsement  not  protesting  the  validity  of 
the  entry.17  The  receiver's  receipt  is  followed  in  due  time  by  patent. 


SAME— CASH  ENTRY  UNDER  A  PREFERENCE  RIGHT. 

125b.  The  actual  possession  of  coal  lands  and  the  bona  fide  opening 
thereon  of  a  coal  mine  give  a  preference  right  in  the  lands, 
•which  must  be  exercised,  if  at  all,  within  6O  days.  The  proceed- 
ings otherwise  are  substantially  like  those  in  the  case  of  ordi- 
nary cash  entry,  except  that  entry  claimed  under  a  preference 
right  cannot  take  place  until  a  year  after  the  expiration  of 
the  60-day  period  allowed  for  filing  the  sworn  application. 

The  preferential  right  to  purchase*  rests  upon  actual  possession  of 
the  land  and  the  opening  of  a  coal  mine  thereon  improved  sufficiently 
to  indicate  good  faith.18  By  ordinary  cash  entry  one  can  get  no  rights 
in  unsurveyed  lands ;  but  the  preferential  right,  though  it  can  be  per- 
fected only  on  surveyed  lands,  can  be  initiated  on  unsurveyed  lands.19 
If  initiated  on  unsurveyed  lands,  the  declaratory  statement  must  be 
filed  within  60  days  after  the  receipt  of  the  township  plat  at  the  dis- 
trict land  office;20  while,  if  initiated  on  surveyed  land  for  which  the 

be  sold  at  the  prices  stated  in  the  schedules  and  maps.     Land  Office  Regula- 
tions, part  1,  rule  6. 

17  Instructions  of  April  24,  1907,  §  5.    See  Appendix. 

*"The  term  'preference'  is  a  familiar  one  under  the  public-land  laws  and 
means  'exclusive.'  A  right  thus  secured,  therefore,  is  to  the  exclusion  of  all 
other  persons ;  and  it  is  evident  without  argument  that  the  duration  and  ex- 
tent of  a  right  of  that  character  should  be  strictly  governed  by  the  statute. 
*  *  *  Under  the  provisions  of  the  law  the  preference  right  of  entry  arises 
only  when  a  duly  qualified  person  or  persons  open  and  improve  a  mine  or 
mines  of  coal  upon  the  public  lands  and  are  in  actual  possession  of  the  same. 
Apart  from  the  matter  of  qualification  under  the  statute,  three  elements  must 
concur  in  point  of  time  to  give  rise  to  the  preference  right,  viz. :  The  opening 
of  a  mine  of  coal ;  its  improvement  as  such ;  and  actual  possession."  Charles 
S.  Morrison,  36  Land  Dec.  Dep.  Int.  126,  128,  129. 

is  Rev.  St.  U.  S.  §  2348  (U.  S.  Comp.  St.  1901,  p.  1440) ;  James  D.  Negus,  11 
Land  Dec.  Dep.  Int.  32;  Reed  v.  Nelson,  29  Land  Dec.  Dep.  Int.  615.  "A 
perfunctory  requirement  with  the  law  in  this  respect  will  not  suffice ;  but 
a  mine  or  mines  of  coal  must  be  in  fact  opened  and  improved  on  the  land 
claimed."  Coal  Land  Regulations,  part  1,  rule  7.  Clearing  out  old  coal  pros- 
pects at  an  expense  of  $10  will  not  do.  Esther  F.  Files,  36  Land  Dec.  Dep. 
Int.  360. 

is  Holladay  Coal  Go.  v.  Kirker,  20  Utah,  192,  57  Pac.  882. 

20  Coal  Land  Regulations,  part  1,  rule  7.    A  method  is  provided  for  getting 
a  survey  of  such  unsurveyed  lands  under  Act  Aug.  20,  1894,  c.  302,  28  Stat  423 
(U.  S.  Comp.  St.  1901,  p.  1477).     See  Circular  21  Land  Dec.  Dep.  Int  77.    See 
Coal  Land  Regulations,  part  1,  rule  23. 
COST.MIN.L.— 30 


4G6  COAL,  TIMBER,  AND    STONE    LAND    ENTRIES,  ETC.          (Cll.  22 

township  plat  is  already  on  file,  the  tract  must  be  claimed  within  60 
days  from  the  date  of  actual  possession  and  commencement  of  improve- 
ments upon  the  land.21  The  declaratory  statement  must  set  forth  the 
qualifications  of  the  applicant,  the  circumstances  giving  preferential 
rights,  and  the  fact  that  the  land  is  chiefly  valuable  for  coal;  and  it 
must  be  verified.22  Then,  within  one  year  after  the  expiration  of  the 
period  allowed  for  filing  the  declaratory  statement,  the  applicant23  may 
file  a  sworn  application  to  purchase,  substantially  in  repetition  of  the 
declaratory  statement,24  and  after  a  publication  and  posting  of  notices 
similar  to  that  in  the  case  of  ordinary  cash  entry,25  and  after  special 
notice  to  all  others  who  appear  of  record  as  claimants  of  the  same 
tract,  he  may  make  final  proof  and  payment.26  Protests  and  adverse 
claims  are  governed  by  the  same  rules  as  in  ordinary  cash  entry.  There 
is  the  same  notice  to  and  return  of  copy  by  the  chiefs  of  field  divisions 
of  special  agents.  The  register  makes  the  same  certificate  as  in  ordi- 
nary cash  entry,  and  on  payment  of  the  money  the  receiver's  receipl 
issues.  Patent  follows  in  due  course. 

21  Rev.  St.  U.  S.  §  2349  (U.  S.  Comp.  St.  1901,  p.  1440) ;'  Coal  Land  Regula- 
tions, part  1,  rule  7.     "From  the  date  the  mine  is  opened  upon  the  coal  and 
improvements  thereon  are  commenced,  the  possession  concurring,  the  perioc 
of  60  days  within  which  a  declaratory  statement  may  be  filed  in  accordance 
with  section  2349  begins  to  run."     Charles  S.  Morrison,  36  Land  Dec.  Dep 
Int.  126,  129.     If  the  declaratory  statement  is  not  filed  within  the  60  days 
but  is  filed  within  the  period  of  substantially  14  months  allowed  to  the  claim 
ant  to  purchase  and  before  adverse  rights  intervene,  the  preference  right  ex 
ists.     CHARLES  S.  MORRISON  (ON  REVIEW)  36  Land  Dec.  Dep.  Int.  319. 

22  A  form  is  suggested  by  the  land  department.    Coal  Land  Regulations,  pan 
1,  rule  11.    By  rule  16  the  verification  must  take  place  in  the  district  where  th< 
land  is  situated  and  before  the  register  or  receiver  of  the  land  district. 

23  "Assignment  of  a  preference  right  of  entry  under  section  2348,  Rev.  St 
U.  S.  (U.  S.  Comp.  St.  1901,  p.  1440),  will  not  hereafter  be  recognized."     Coa 
Land  Regulations,  part  1,  rule  5.    A  contract  by  one  person  to  enter  coal  lane 
and  after  patent  convey  It  to  another,  who  has  exhausted  his  right,  Is  clear 
ly  contrary  to  public  policy.     JOHNSON  v.  LEONHARD,  1  Wash.   St.  564 
20  Pac.  591. 

24  For  form  of  affidavit,  see  Coal  Land  Regulations,  part  1,  rule  14. 

25  Coal  Land  Regulations,  part  1,  rules  17,  18,  19.    Publication  must  be  mad< 
sufticiently  in  advance  to  permit  entry  within  the  year  specified  by  the  statute 
Id.  rule  17. 

26  Coal  Land  Regulations,  part  1,  rule  12.     "A  declarant  will  not  be  per 
mitted  to  file  after  the  expiration  of  the  60  days  allowed,  nor  to  exercise  i 
preference  right  of  purchase  after  the  expiration  of  the  year."     Coal  Lam 
Regulations,  part  1,  rule  13.    See  Rev.  St  U.  S.  §  2350  (U.  S.  Comp.  St  1901 
p.  1441) ;  Reed  v.  Nelson,  29  Land  Dec.  Dep.  Int.  615. 


126)  TIMBER   AND   STONE    LAND    ENTRIES.  467 


SAME— INDIAN  COAL  LAND  LEASES. 

125c.  Certain  Indian  coal  lands  are  not  allowed  to  be  sold,  but  are 
leased  for  the  Indians  by  the  United  States.  It  is  possible 
that  ultimately  a  similar  leasing  system  will  completely  dis- 
place the  present  system  of  coal  land  entries. 

The  coal  lands  of  the  tribes  of  Indians  in  that  part  of  Oklahoma 
which  was  Indian  Territory  have  been  protected  from  sale,  and  are 
still  to  some  extent  protected  from  sale,  by  various  United  States  stat- 
utes, but  have  been  leased  for  the  Indians  by  the  United  States.  In 
view  of  at  least  one  bill  pending  in  Congress  to  end  the  sale  of  all 
coal  lands  and  substitute  a  system  of  leasing  such  lands,  the  regula- 
tions adopted  by  the  United  States  for  the  leasing  of  some  of  such 
Indian  mineral  lands,  and,  in  addition,  some  of  the  forms  used  by  the 
United  States,  are  embodied  in  the  appendix  of  this  book. 

TIMBER  AND  STONE  LAND  ENTRIES. 

126.  A  plan  analogous  to  that  used  in  coal  land  entries  is  followed 
under  the  timber  and  stone  act  for  timber  and  stone  lands, 
•which  are  unfit  for  cultivation  and  are  valuable  chiefly  for 
timber  and  stone.  The  steps  are:  (1)  The  sworn  application; 

(2)  the  posting  and  publication  of  the  notice  of  application; 

(3)  the  proofs  of  posting  and  publication;     (4)   an  oral  hear- 
ing,  and,  if  there   are   any   adverse   claims   or  protests,   their 
determination;   (5)   a  report  by  the   chief   of  field   division  of 
special  agents  of  the  land  department;  (6)  entry;  (7)  patent. 

Under  the  timber  and  stone  act  of  June  3,  1878, 27  as  amended  Au- 
gust 4,  1892, 28  a  somewhat  similar  method  to  that  for  coal  lands  is 
provided  for  acquiring  lands  valuable  chiefly  for  timber  or  stone  and 
unfit  for  cultivation  at  the  time  of  sale.29  The  same  rules  as  to  in- 
dividual and  association  qualifications  apply  to  claimants  of  such  lands 
as  do  to  claimants  for  coal  lands,  except  that  only  160  acres  can  be 
acquired  by  any  one  person  or  association.30  No  land  can  be  entered 
until  after  the  filing  of  a  sworn  application  and  a  hearing  thereon,  had 
upon  the  proper  posting  and  publication  of  the  requisite  notice. 

2720  Stat.  89,  c.  151  (U.  S.  Comp.  St.  1901,  p.  1545). 

2827  Stat.  348,  c.  375  (U.  S.  Comp.  St.  1901,  p.  1547). 

2  9  Johnson  v.  McMillan,  22  Land  Dec.  Dep.  Int.  647.  A  timber  and  stone 
entry  on  unsurveyed  land  was  held  to  be  a  nullity  in  Cobb  v.  Oregon  &  Cali- 
fornia R.  R.  Co.,  36  Land  Dec.  Dep.  Int.  268. 

so  in  the  case  of  an  association  claiming  coal  lands,  each  of  the  persons  must 
prove  the  requisite  qualifications,  and  each  must  subscribe  and  swear  to  the 
application  or  affidavit.  Coal  Land  Regulations,  part  1,  rule  15. 


468  COAL,  TIMBER,  AND   STONE   LAND   ENTRIES,  ETC.  (Ch.  22 

The  statute  prescribes  that  the  sworn  application  must  be  made  in 
duplicate,  must  designate  by  legal  subdivisions  the  particular  tract 
of  land  the  applicant  desires  to  purchase,  and  must  set  forth  that  the 
same  is  unfit  for  cultivation  and  valuable  chiefly  for  its  timber  or  stone ; 
that  it  is  uninhabited;  that  it  contains  no  mining  or  other  improve- 
ments, except  for  ditch  or  canal  purposes,  where  any  such  do  exist, 
save  such  as  were  made  by  or  belong  to  the  applicant,  nor,  as  deponent 
verily  believes,  any  valuable  deposit  of  gold,  silver,  cinnabar,  copper, 
or  coal;  that  deponent  has  made  no  other  application  under  this  act; 
that  he  does  not  apply  to  purchase  the  same  on  speculation,  but  in  good 
faith  to  appropriate  it  to  his  own  exclusive  use  and  benefit;  and  that 
he  has  not,  directly  or  indirectly,  made  any  agreement  or  contract,  in 
any  way  or  manner,  with  any  person  or  persons  whatsoever,  by  which 
the  title  which  he  might  acquire  from  the  government  of  the  United 
States  should  inure,  in  whole  or  in  part,  to  the  benefit  of  any  persons 
except  himself.81 

Upon  the  filing  of  the  sworn  statement,  the  register  must  post  in  his 
office  for  60  days  a  notice  of  the  application,  and  furnish  the  appli- 
cant a  copy  to  publish  for  a  like  period  in  the  newspaper  nearest  the 
location  of  the  premises.32  This  notice  must  describe  the  land  by  legal 
subdivisions,33  must  state  the  time  and  place  when,  and  the  officer  be- 
fore whom,  the  applicant  intends  to  offer  proof,  and  must  contain  the 
names  of  the  witnesses  who  are  to  testify.3*  The  claimant  has  to  be 
corroborated  by  two  disinterested  witnesses,35  so  at  least  two  witnesses 
must  be  named  in  the  notice. 

The  hearing  is  by  oral  examination,  reduced  to  writing  upon  the 
blanks  furnished  for  the  purpose.36  Payment  must  be  made  at  the 
time  of  offering  proof.  Until  recently  proof  of  everything  contained 
in  the  sworn  application  has  been  required;  but  the  Supreme  Court 

si  Act  June  3,  1878,  c.  151,  §  2,  20  Stat.  89  (U.  S.  Comp.  St  1901,  p.  1545). 
By  the  application  no  such  vested  right  is  acquired,  prior  to  making  final  proof 
and  payment,  as  will  prevent  withdrawal  of  the  lands  under  the  irrigation 
act  (Act  June  17,  1902,  c.  1093,  32  Stat.  388  [U.  S.  Comp.  St.  Supp.  1907,  p. 
511]).  Charles  O.  De  Land,  36  Land  Dec.  Dep.  Int.  18.  An  application  to 
purchase  under  the  timber  and  stone  act  was  held  a  valid  exercise  of  a  pref- 
erence right  gained  in  contesting  a  homestead  entry  for  the  same  land  in 
Harris  v.  Heirs  of  Ralph  H.  Chapman,  36  Land  Dec.  Dep.  Int.  272.  In  Cain 
v.  Carrier,  36  Land  Dec.  Dep.  Int.  356,  two  applications  for  stone  and  timber 
land  were  treated  as  simultaneous,  and  entry  awarded  to  the  higher  bidder. 
The  filing  of  an  application  for  a  tract  of  land  to  which  the  applicant  can 
complete  title  exhausts  the  applicant's  right  of  purchase  under  the  act.  George 
F.  Brice,  37  Land  Dec.  Dep.  Int.  145. 

32Act  June  3,  1878,  c.  151,  §  3,  20  Stat.  90  (U.  S.  Oomp.  St.  1901,  p.  1546). 

33  Id. 

34  General  Land  Office  Circular  Issued  Jan.  25,  1904,  p.  41,  rule  10.     See 
Sarah  L.  Bigelow,  20  Land  Dec.  Dep.  Int.  6. 

35  General  Land  Office  Circular  Issued  Jan.  25,  1904,  p.  41,  rule  11. 


§  126)  TIMBER   AND   STONE   LAND    ENTRIES.  469 

of  the  United  States  has  just  decided  in  a  criminal  case  that  the  land 
department  cannot  require  an  applicant  under  the  timber  and  stone  act 
to  make  oath  on  final  hearing  of  his  bona  fides  and  of  the  absence  of 
any  contract  or  agreement  by  him  in  respect  to  the  title.37  A  report 
from  the  chiefs  of  field  division  of  special  agents  of  the  land  depart- 
ment seems  to  be  required,  just  as  in  the  case  of  coal  land. 

No  entry  will  be  allowed  until  previous  adverse  claims  and  pro- 
tests have  been  determined.38  Special  provision  is  made  for  contest 
after  entry  and  before  patent.39  In  the  case  of  uncontested  applica- 
tions, patent  issues  in  due  course  after  entry. 

37  Williamson  v.  United  States,  207  U.  S.  425,  28  Sup.  Ct.  163,  52  L.  Ed.  278. 
ss  General  Land  Office  Circular  Issued  Jan.  25,  1904,  p.  42,  rule  14. 
«»  General  Land  Office  Circular  Issued  Jan.  25,  1904,  p.  42,  rule  15. 


470  OIL  AND   GAS  LEASES.  (Ch.  23 

CHAPTER  XXIII. 

OIL  AND  GAS  LEASES. 

127.  Kinds  of  Oil  and  Gas  Leases. 

128.  Ordinary  Obligations  of  Lessors  and  Lessees. 

KINDS  OF  OIL  AND   GAS  LEASES. 

127.  Oil  and  gas  leases  display  certain  peculiarities  which  grow  out 
of  the  migratory  character  of  oil  and  gas.  Such  so-called 
leases  seem  to  be  of  three  kinds: 

(1)  "Optional  leases,"  terminable  by  either  party. 

(2)  The    ordinary    so-called   leases,    which    are    licenses,    irrevocable 

while   being    exercised   in    accordance    with    their    terms,    but 
carrying  no  estate  in  the  minerals  or  the  land. 

(3)  Genuine  leases,   carrying  a  present  estate  in  the  land  and  the 

lessor's   full    qualified    property    in    the    oil    and   gas    for   the 
terms  of  the  leases. 

Oil  lands,  as  we  have  seen,1  are  to  be  located  as  placers.2  So  are 
natural  gas  lands,  it  would  seem,3  since  natural  gas  is  a  mineral.4  But 
the  volatile  and  fugitive  character  of  such  minerals  has  resulted  in  cer- 
tain peculiarities  of  oil  and  gas  leases  which  need  to  be  dwelt  upon. 

Because  of  the  migratory  character  of  the  oil  and  the  gas,  the  land- 
owner's title  to  them  is  contingent,  and  liable  to  be  defeated  at  any 
time  by  their  escape  into  other  land.5  Until  the  oil  or  gas  is  discovered 
in  a  well  in  a  given  tract  of  land,  indeed,  there  is  no  certainty  that 

1  See  chapter  XV,  §  69,  supra. 

2  Act  Feb.  11,  1897,  c.  216,  29  Stat.  526  (U.  S.  Oomp.   St  1901,  p.  1434) ; 
Union  Oil  Co.,  25  Land  Dec.  Dep.  Int.  351. 

3  Cf.  1  Lindley  on  Mines  (2d  Ed.)  §  423. 

*  WESTMORELAND  &  CAMBRIA  NATURAL  GAS  CO.  v.  DE  WITT,  ISO 
Pa.  235,  249,  18  Atl.  724,  5  L.  R.  A.  731 ;  MURRAY  v.  ALLRED,  100  Tenn. 
100,  43  S.  W.  355,  39  L.  R.  A.  249,  66  Am.  St.  Rep.  740;  Lanyon  Zinc  Co.  v. 
Freeman,  68  Kan.  691,  75  Pac.  995;  Preston  v.  White,  57  W.  Va.  278,  50  S.  E. 
236;  Suit  v.  Hochstetter  Oil  Co.  (W.  Va.)  6i  S.  E.  307.  But  see  Silver  v. 
Bush,  213  Pa.  195,  62  Atl.  832. 

5  "Waiter  and  oil,  and  still  more  strongly  gas,  may  be  classed  by  themselves, 
if  the  analogy  be  not  too  fanciful,  as  mineral  ferae  naturae.  In  common  with 
animals,  and  unlike  other  minerals,  they  have  the  power  and  the  tendency  to 
escape  without  the  volition  of  the  owner.  *  *  *  They  belong  to  the  owner 
of  the  land,  and  are  part  of  it,  so  long  as  they  are  on  it  or  in  it,  and  are  sub- 
ject to  his  control ;  but  when  they  escape  and  go  into  other  land,  or  come 
under  another's  control,  the  title  of  the  former  owner  is  gone."  WESTMORE- 


§  127)  KINDS   OF   OIL   AND   GAS   LEASES.  471 

any  is  contained  in  it.  Accordingly  a  landowner  may  drill  an  oil  well 
on  his  land,  though  he  may  draw  from  an  oil' well  on  adjoining  land ; B 
but  it  has  been  declared  in  Incjiana  that,  independently  of  the  statutes 
which  exist  there  against  pumping,7  "natural  gas  in  the  ground  is  so 
far  the  subject  of  property  rights  in  the  owners  of  the  superincumbent 
lands  that  while  each  of  them  has  the  right  to  bore  or  mine  for  it  orr 
his  own  land,  and  to  use  such  portion  of  it  as,  when  left  to  natural 
laws  of  flowage,  may  rise  in  the  wells  of  such  owner  and  into  his  pipesr 
no  one  of  the  owners  of  such  lands  has  the  right,  without  the  consent 
of  all  the  other  owners,  to  induce  an  unnatural  flow  into  or  through  his 

7  o 

own  wells,  or  to  do  any  act  with  reference  to  the  common  reservoir  and 
body  of  gas  therein  injurious  to  or  calculated  to  destroy  it."  8 

LAND  &  CAMBRIA  NATURAL  GAS  CO.  v.  DE  WITT,  130  Pa.  235,  249,  18 
Atl.  724,  5  L.  R.  A.  731.  See  BROWN  v.  SPILMAN,  155  U.  S.  G65,  15  Sup. 
Ct.  245,  39  L.  Ed.  304 ;  Barnard  v.  Monongahela  Natural  Gas  Co.,  210  Pa.  362, 
65  Atl.  801 ;  Kelley  v.  Ohio  Oil  Co.,  57  Ohio  St.  317,  49  N.  E.  399,  39  L.  R. 
A.  7G5,  63  Am.  St.  Rep.  721 ;  Richmond  Natural  Gas  Co.  v.  Davenport.  37  Ind. 
App.  25,  76  N.  E.  525 ;  Poe  v.  Ulrey,  233  111.  56,  84  N.  E.  46.  For  a  discussion 
of  the  distinction  between  animals  ferae  naturae  and  mineral  deposits  of  oil 
and  gas,  see  OHIO  OIL  CO.  v.  STATE  OF  INDIANA,  177  U.  S.  190,  208-211, 
20  Sup.  Ct  576,  44  L.  Ed.  729. 

e  BARNARD  v.  MONONGAHELA  NATURAL  GAS  CO.,  216  Pa.  362,  65  Atl. 
801. 

7  Manufacturers'  Gas  &  Oil  Co.  v.  Indiana  Natural  Gas  &  Oil  Co.,  155  Ind. 
461,  468,  57  N.  E.  912,  50  L.  R.  A.  768. 

s  Manufacturers'  Gas  &  Oil  Co.  v.  Indiana  Natural  Gas  &  Oil  Co.,  155 
Ind.  469,  57  N.  E.  912,  50  L.  R.  A.  768.  See  Calor  Oil  &  Gas  Co.  v.  Fran- 
zell,  33  Ky.  Law  Rep.  98,  109  S.  W.  328.  But  see  People's  Gas  Co.  v.  Ty- 
ner,  131  Ind.  277,  31  N.  E.  59,  16  L.  R.  A.  443,  31  Am.  St.  Rep.  433.  But, 
where  the  reservoir  is  almost  depleted,  the  pumps  are  so  small  in  cost  that 
they  are  within  the  reach  of  all  operators,  and,  if  all  use  them,  nobody 
will  be  injured,  the  use  of  the  pumps  will  not  be  enjoined.  JONES  v.  FOR- 
EST OIL  CO.,  194  Pa.  379,  44  Atl.  1074,  48  L.  R.  A.  748.  And  it  has  been  held 
that  a  landowner  may  let  gas  escape  and  go  to  waste  to  the  depletion  of  the 
gas  basin  where  others  are  operating.  Hague  v.  Wheeler,  157  Pa.  324,  27  Atl. 
714,  22  L.  R.  A.  141,  37  Am.  St.  Rep.  736.  But  see  LOUISVILLE  GAS  CO. 
v.  KENTUCKY  HEATING  CO.,  25  Ky.  Law  Rep.  1221,  77  S.  W.  368.  Id. 
(Ky.)  Ill  S.  W.  374,  contra.  In  the  latter  case  the  true  measure  of  damages 
for  waste  is  discussed.  A  lessee  of  two  tracts  of  oil  land,  who  sinks  a  well 
on  one  tract  which  drains  a  portion  of  the  other,  must  pay  the  lessor  of  the 
other  his  proportionate  share  of  royalty  on  the  oil  produced.  KLEPPNER  v. 
LEMON,  198  Pa.  581,  48  Atl.  483. 

It  has  to  be  admitted  that,  in  failing  to  protect  one  oil  or  gas  well  owner 
against  the  waste  and  malice  of  another,  the  courts  have  fallen  too  far  short 
of  the  progressive  stand  being  taken  by  them  in  regard  to  percolating  water. 
See  a  note  on  "Correlative  Rights  in  Percolating  Waters,"  Barclay  v.  Abra- 
ham, 64  L.  R.  A.  256.  The  recent  case  of  LOUISVILLE  GAS  CO.  v.  KEN- 
TUCKY HEATING  CO.,  25  Ky.  Law  Rep.  1221,  77  S.  W.  368,  where  a  lessee 
was  not  allowed  to  waste  the  gas  from  gas  wells  in  order  to  injure  the  own- 


472  OIL  AND   GAS   LEASES.  (Ch.  23 

The  fact  to  be  remembered  is  that  oil  and  gas  are  the  subject  of  only 
qualified  ownership  while  they  remain  in  the  land,  and  that  a  lessor 
cannot  confer  on  his  lessee  anything  more  than  the  qualified  property  i 
the  minerals  which  he  himself  has.9    There  seem  to  be  three  kinds  of 
contracts  referred  to  in  the  books  as  oil  and  gas  leases. 

"Optional"  Oil  and  Gas  Leases. 

There  is,  first,  what  from  the  so-called  lessor's  point  of  view  is  noth- 
ing but  a  revocable  license,  and  from  the  so-called  lessee's  point  of 
view  is  a  mere  option.  These  so-called  "optional  leases"  are  illustrated 
by  the  case  of  a  lease  which  expressly  gives  the  lessee  the  right  to  sur- 
render it  at  any  time  without  payment  of  rent  or  fulfillment  of  any 
covenant  on  his  part.10  Such  an  executory  lease  is  terminated  by  the 
death  of  the  lessor  1X  and  at  the  will  of  either  party.12  Whether  an  oil 
or  gas  lease  shall  be  construed  to  be  a  real  lease,  or  only  a  license,  de- 
depends  upon  the  intention  of  the  parties  as  expressed  in  the  written 
instrument,  in  view  of  the  peculiar  character  of  the  minerals  dealt  with. 
A  so-called  oil  and  gas  lease  which  does  not  obligate  the  lessee  to  com- 
mence or  prosecute  the  work,  and  which  he  may  terminate  at  his  pleas- 
ure without  compensation  to  the  lessor,  other  than  the  $1  consideration 
paid  for  it,  is  practically  a  revocable  license,  or  at  best  a  conditional  es- 
tate at  will,  terminable  at  the  will  of  either  party.13 

er  of  wells  on  adjoining  land,  is  a  step  in  the  right  direction.     See,  also,  dic- 
tum in  Katz  v.  Walkinshaw,  141  Cal.  116,  70  Pac.  663,  74  Pac.  766,  772,  773, 

64  L.  R.  A.  236,  99  Am.  St.  Rep.  35. 

»  One  lawfully  in  possession  of  oil  or  gas  lands  is  not  entitled  to  extract 
oil  or  gas  without  permission  of  the  owner  of  the  fee.  Richmond  Natural  Gas 
Co.  v.  Davenport,  37  Ind.  App.  25,  76  N.  E.  525. 

10  Eclipse  Oil  Co.  v.  South  Penn  Oil  Co.,  47  W.  Va.  84,  34  S.  E.  923 ;   Glas- 
gow v.  Chartiers  Oil  Co.,  152  Pa.  48,  25  Atl.  232.     See  Snodgrass  v.  South 
Penn  Oil  Co.,  47  W.  Va.  509,  35  S.  E.  820 ;   Tennessee  Oil,  Gas  &  Mineral  Co. 
v.  Brown,  131  Fed.  696,  65  C.  C.  A.  524 ;    Brooks  v.  Kunkle,  24  Ind.  App.  624, 
57  N.  E.  260;    O'Neill  v.  Risinger  (Kan.)  93  Pac.  340. 

11  TREES  v.  ECLIPSE  OIL  CO.,  47  W.  Va.  107,  34  S.  E.  933.     Compare 
Mathews  v.  People's  Natural  Gas  Co.,  179  Pa.  165,  36  Atl.  216. 

12  TENNESSEE  OIL,  GAS  &  MINERAL  CO.  v.  BROWN,  131  Fed.  696, 

65  C.  O.  A.  524;   J.  M.  Guffey  Petroleum  Co.  v.  Oliver  (Tex.  Civ.  App.)  79  S. 
W.  884.     But  see  Central  Ohio,  etc.,  Co.  v.  Eckert,  70  Ohio  St.  127,  71  N.  E. 
281,  where  the  court  construed  an  instrument  to  be  a  lease  at  the  option  of 
the  lessee  only.    A  lease  to  terminate  within  60  days  after  unpaid  rental  be- 
comes due  is  terminable  in  that  way  only  at  the  option  of  the  lessor.     HAN- 
COCK v.  DIAMOND  PLATE  GLASS  CO.,  162  Ind.  146,  70  N.  E.  149.     An  op- 
tion, which,  when  exercised,  becomes  a  vested  interest,  may,  of  course,  be 
given  in  the  form  of  a  lease.    Emery  v.  League,  31  Tex.  Civ.  App.  474,  72  S. 
W.  603. 

is  FEDERAL  OIL  CO.  v.  WESTERN  OIL  CO.  (C.  C.)  112  Fed.  373;  Roberts 
&  Corley  v.  McFadden,  Weiss  &  Kyle,  32  Tex.  Civ.  App.  47,  74  S.  W.  105; 


§  127)  KINDS   OF   OIL   AND   GAS   LEASES.  473 

The  Ordinary  So-Called  Oil  or  Gas  Lease. 

The  second  kind  of  oil  or  gas  leases  is  that  where  the  lessee  is  either 
impliedly  or  expressly  bound  to  go  ahead  and  drill  wells  (with  perhaps 
the  provision  that  certain  test  wells  shall  first  be  put  down  to  see  wheth- 
er there  is  oil  or  gas  in  the  land),  and  it  is  the  express  or  implied  con- 
dition of  any  estate  in  the  minerals  or  in  the  land  vesting  in  the  lessee 
that  oil  or  gas  shall  be  found  in  such  quantities  as  to  justify  the  ex- 
penditure by  the  lessee  of  the  money  necessary  for  their  production.14 
In  such  leases,  because  of  the  uncertainty  whether  oil  or  gas  will  be 
found,  and  because  both  public  policy  and  the  due  protection  of  the  les- 
sor require  that  the  lessee  be  spurred  on  to  make  a  discovery,15  it  is 
held  that  the  lessee  has  no  estate  in  the  oil  or  gas  in  the  land  until  he 
actually  discovers  them  in  his  well  in  paying  quantities.16  Indeed,  it 

Martel  v.  Jennings-Heywood  Oil  Syndicate,  114  La.  351,  38  So.  253;  O'Neill 
v.  Risinger  (Kan.)  93  Pac.  340.  See  Shepherd  v.  McCalmont  Oil  Co.,  38  Hun, 
37 ;  Dark  v.  Johnston,  55  Pa.  164,  93  Am.  Dec.  732 ;  Murray  v.  Barnhart, 
117  La.  1023,  42  So.  489;  Dill  v.  Fraze  (Ind.)  79  N.  E.  971.  But  see  Poe  v. 
Ulrey,  233  111.  56,  84  N.  E.  46 ;  Allegheny  Oil  Co.  v.  Snyder,  106  Fed.  764,  45 
C.  C.  A.  604 ;  BREWSTER  v.  LANYON  ZINC  CO.,  140  Fed.  801,  72  C.  C.  A. 
213 ;  New  American  Oil  Co.  v.  Troyer,  166  Ind.  402,  76  N.  E.  253,  77  N.  E.  739. 
See  Parish  Fork  Oil  Co.  v.  Bridgewater  Gas  Co.,  51  W.  Va.  583,  42  S.  E. 
655,  59  L.  R.  A.  566.  Where  a  lessee  must  either  drill  or  pay  rent  under  pen- 
alty of  the  lease  being  void,  he  cannot  take  advantage  of  his  own  wrongful 
refusal  to  do  either  to  terminate  the  lease.  HENNE  v.  SOUTH  PENN  OIL 
CO.,  52  W.  Va.  192,  43  S.  E.  147 ;  Jackson  v.  O'Hara,  183  Pa.  233,  38  Atl.  624. 
Such  a  lease  is  based  on  a  sufficient  consideration.  Great  Western  Oil  Co. 
v.  Carpenter  (Tex.  Civ.  App.)  95  S.  W.  57;  Houssiere-Latreille  Oil  Co.  v. 
Jennings-Heywood  Oil  Syndicate,  115  La.  107,  38  So.  932.  But  there  is  no 
consideration  if  the  agreement  is  to  complete  a  second  well  within  90  days 
after  the  completion  of  a  first  well,  which  the  lessee  does  not  agree  even  to 
commence.  FEDERAL  OIL  CO.  v.  WESTERN  OIL  CO.  (C.  C.)  112  Fed.  373. 

i*  On  the  question  of  when  oil  has  been  found  in  such  quantities,  see  MAN- 
HATTAN OIL  CO  v.  CARRELL,  164  Ind.  526,  73  N.  E.  1084 ;  Bay  State  Pe- 
troleum Co.  v.  Penn.  Lubricating  Co.,  27  Ky.  Law  Rep.  1133,  87  S.  W.  1102; 
SUMMERVILLE  v.  APPOLO  GAS  CO.,  207  Pa.  334,  56  Atl.  876.  See,  also, 
note  37,  infra. 

is  See  PLUMMER  v.  HILLSIDE  COAL  &  IRON  CO.,  160  Pa.  483,  493,  28 
Atl.  853,  where  oil  and  gas  leases  are  distinguished  from  coal  leases. 

is  The  right  to  go  ahead  under  such  a  lease  may  be  lost  by  abandonment. 
STEELSMITH  v.  GARTLAN,  45  W.  Va.  27,  29  S.  E.  978,  44  L.  R.  A.  107; 
Venture  Oil  Co.  v.  Fretts,  152  Pa.  451,  25  Atl.  732;  FLORENCE  OIL  &  RE- 
FINING CO.  v.  ORMAN,  19  Colo.  App.  79.  73  Pac.  628;  RAWLINGS  v.  AR- 
MEL,  70  Kan.  778,  79  Pac.  683 ;  HUGGINS  v.  DALEY,  99  Fed.  606,  40  C.  C. 
A.  12,  48  L.  R.  A.  320.  See  Detlor  v.  Holland,  57  Ohio  St.  492,  49  N.  E.  690, 
40  L.  R.  A.  266 ;  Aye  v.  Philadelphia  Co.,  193  Pa.  451,  44  Atl.  555,  74  Am.  St. 
Rep.  696;  Lowther  Oil  Co.  v.  Miller-Sibley  Oil  Co.,  53  W.  Va.  501,  44  S.  E. 
4.°,:;,  07  Am.  St.  Rep.  1027;  Suit  v.  Hochstetter  Oil  Co.  (W.  Va.)  61  S.  E.  307; 
Mills  v.  Hartz  (Kan.)  94  Pac.  142.  Under  an  Ohio  recording  act,  such  a  lease 


474  OIL   AND   GAS   LEASES.  (Ch.  23 

seems  clear  that  the  lessee  of  an  exclusive  right  to  mine  and  excavate 
oil  on  a  royalty  basis  has  no  title  in  the  oil  until  he  has  actually  taken 
the  oil  from  the  ground  and  reduced  it  to  possession.17  That  is  be- 
cause in  reality  the  lessor's  right  is  only  that.18 

Prior  to  the  discovery  of  oil  or  gas,  this  usual  kind  of  oil  or  gas 
lease  is  merely  a  grant  of  possession  of  the  realty  for  the  purpose  of 
searching  for  and  procuring  oil  or  gas,19  and  so  is  in  the  nature  of  a  li- 

has  been  held  to  be  of  no  force  against  third  persons  unless  it  is  recorded,  or 
unless  the  lessee  is  actually  in  possession  of  the  land.  Nprthwestern  Ohio 
Natural  Gas  Co.  v.  Tiffin,  59  Ohio  St.  420,  54  N.  E.  77.  And  the  doctrine  cov- 
ers an  extension  of  a  lease  under  an  option  contained  in  it.  Brown  v.  Ohio  Oil 
Co.,  21  Ohio  Cir.  Ct.  R.  117.  But  it  may  not  apply  to  a  license,  as  distin- 
guished from  a  lease.  Allegheny  Oil  Co.  v.  Snyder,  106  Fed.  764,  45  C.  C.  A. 
604.  Where  a  lessee  who  has  bound  himself  by  covenants  to  develop  the  oil 
tract  has  actually  produced  oil,  he  has  a  vested  estate,  which  cannot  be  tak- 
en away  because  he  exercises  his  discretion,  without  fraud,  by  not  sinking 
more  wells.  COLGAN.  v.  FOREST  OIL  CO.,  194  Pa.  234,  45  At!.  119,  75  Am. 
St.  Rep.  695. 

IT  WAGNER  v.  MALLORY,  169  N.  Y.  501,  62  N.  E.  584.  See  Lawson  v. 
Kirchner,  50  W.  Va.  344,  348,  40  S.  E.  344 ;  Duffield  v.  Hue,  136  Pa.  602,  607, 
20  Atl.  526 ;  Backer  v.  Penn  Lubricating  Co.  (C.  C.  A.)  162  Fed.  627.  See,  also, 
note  25,  infra. 

i  s  "Petroleum  oil  is  a  mineral,  and  while  in  the  earth  is  part  of  the  realty, 
and  should  it  move  from  place  to  place,  by  percolation  or  otherwise,  it  forms 
part  of  that  tract  of  land  in  which  it  tarries  for  the  time  being,  and  if  it 
moves  to  the  next  adjoining  tract  it  becomes  part  and  parcel  of  that  tract ; 
and  it  forms  part  of  some  tract  until  it  reaches  a  well  and  is  raised  to  the 
surface,  and  then  for  the  first  time  it  becomes  the  subject  of  distinct  owner- 
ship separate  from  the  realty,  and  becomes  personal  property,  the  property  of 
the  person  into  whose  well  it  came.  And  this  is  so  whether  the  oil  moves, 
percolates,  or  exists  in  pools  or  deposits.  In  either  event,  it  is  the  property 
of,  and  belongs  to,  the  person  who  reaches  it  by  means  of  a  well  and  severs 
it  from  tl\e  realty  and  converts  it  into  personalty."  KELLEY  v.  OHIO  OIL 
CO.,  57  Ohio  St.  317-328,  49  N.  E.  399,  39  L.  R.  A.  765,  63  Am.  St.  Rep.  721 ; 
Wilson  v.  Youst,  43  W.  Va.  826,  28  S.  E.  781,  39  L.  R.  A.  292.  See  State  v. 
Ohio  Oil  Co.,  150  Ind.  21,  49  N.  E.  809,  47  L.  R.  A.  627 ;  Ohio  Oil  Co.  v.  State 
of  Indiana,  177  U.  S.  190,  20  Sup.  Ct.  576,  44  L.  Ed.  729;  Manufacturers' 
Gas  &  Oil  Co.  v.  Indiana  Natural  Gas  &  Oil  Co.,  155  Ind.  461,  57  N.  E.  912,  50 
L.  R.  A.  768. 

19  BARNHART  v.  LOCK  WOOD,  152  Pa.  82,  25  Atl.  237;  Richlands  Oil  Co. 
v.  Morriss  (Va.)  61  S.  E.  762.  "A  lease  to  mine  for  oil  or  gas  is  a  mere  in- 
corporeal right  to  be  exercised  in  the  land  of  another.  It  is  a  profit  a.  pren- 
dre.  which  may  be  held  separate  and  apart  from  the  possession  of  the  land 
itself."  FEDERAL  OIL  CO.  v.  WESTERN  OIL  CO.  (C.  C.)  112  Fed.  373, 
375,  376.  See  FUNK  v.  HALDEMAN,  57  Pa.  229,  243.  It  is  sufficient  of  an 
inchoate  interest  to  enable  the  lessee  to  maintain  an  injunction  against  a 
wrongdoer's  extraction  of  oil  and  gas  from  the  land.  TREES  v.  ECLIPSE 
OIL  CO..  47  W.  Va.  107,  34  S.  E.  933.  Or  to  recover  damages  against  the 
wrongdoer.  Backer  v.  Penn  Lubricating  Co.  (C.  C.  A.)  162  Fed.  627.  Where 


§  127)  KINDS   OF   OIL   AND   GAS   LEASES.  475 

cense ;  *  but  it  differs  from  a  mere  license,  in  that  there  is  no  right  to 
revoke  it  so  long  as  the  lessee  proceeds  with  due  diligence  and  prudence 
to  carry  out  his  part  of  the  undertaking.  It  is,  if  one  dislikes  the  term 
"lease,"  a  license  irrevocable  so  long  as  its  express  and  implied  terms 
are  fulfilled  by  the  licensee.20  Until  oil  or  gas  is  struck,  as  well  as  aft- 
erwards, a  genuine  oil  or  gas  lease  is  irrevocable,  except  for  breach  of . 
an  express  or  an  implied  condition.21 

The  doctrine  is  fundamental  that  because  of  the  peculiar  nature  of 
oil  and  gas,  and  the  danger  of  loss  to  the  lessor  through  the  drainage 
of  oil  and  gas  by  surrounding  wells,  oil  and  gas  leases  are  to  be  con- 
strued most  strongly  against  the  lessee  and  in  favor  of  the  lessor.22 
While,  therefore,  where  the  lessor  granted,  demised,  and  let  for  five 
years,  or  as  much  longer  as  oil  or  gas  should  be  found  in  paying  quanti- 
ties, all  the  petroleum  and  gas  in  or  under  a  specified  tract  of  land,  "for 
the  purpose  and  with  the  exclusive  right  of  drilling  and  operating  upon 
said  premises  for  said  petroleum  and  gas,"  it  was  held  that  the  instru- 
ment was  more  than  a  license  and  was  a  lease,28  no  estate  could  vest 
in  oil  or  gas  under  it  until  found,  and  the  presumption  is  against  any 
estate  even  in  the  land  vesting  until  then.24  The  better  view  is  that 

the  lessor  has  a  homestead,  it  is  a  conveyance  of  an  interest  in  that    Poe  v. 
Ulrey,  233  111.  56,  84  N.  E.  46. 

*  Beardsley  v.  Kansas  Natural  Gas  Co.  (Kan.)  96  Pac.  859. 

20  DARK  v.  JOHNSTON,  55  Pa.  164,  93  Am.  Dec.  732;    Shepherd  v.  McCal- 
mont  Oil  Co.,  38  Hun,  37 ;    Grubb  v.  Bayard,  2  Wall.  Jr.  (U.  S.)  81,  Fed.  Cas. 
No.  5,849.     Subscribing  witnesses  are  as  necessary  to  a  lease  of  land  for  the 
development  of  oil  or  gas  as  to  any  other  lease  for  the  same  length  of  time 
for  any  other  purpose.     Langmede  v.  Weaver,  65  Ohio  St.  17,  60  N.  E.  992. 

21  See  HARRIS  v.  OHIO  OIL  CO.,  57  Ohio  St.  118,  48  N.  E.  502,  Carr  v. 
Huntington  Light  &  Fuel  Co.,  33  Ind.  App.  1,  70  N.  E.  552,  and  Dickey  v.  Cof- 
feyville  Vitrified  Brick  &  Tile  Co.,  69  Kan.  106,  76  Pac.  398,  to  the  effect  that 
the  right  becomes  vested  on  the  discovery  of  oil  or  gas.    To  the  same  effect  is 
Headley  v.  Hoopengarner,  60  W.  Va.  626,  55  S.  E.  744. 

22  HUGGINS  v.   DALEY,  99  Fed.  606,  40  C.  O.  A.   12,  48  L.   R.   A.   320; 
STEELSMITH  v.  GARTLAN,  45  W.  Va.  27,  35,  29  S.  E.  978,  44  L.  R.  A.  107 ; 
Bettman  v.  Harness,  42  W.  Va.  433,  26  S.  E.  271,  3G  L.  R.  A.  566. 

23  Woodland  Oil  Co.  v.  Crawford,  55  Ohio  St.  161,  44  N.  E.  1093,  34  L.  R. 
A.  62.     Such  a  grant  seems  to  create  a  tenancy  from  year  to  year  until  a 
well  is  completed,  and  then  the  tenancy  continues  as  long  as  oil  or  gas  is 
produced  in  paying  quantities.     Lowther  Oil  Co.  v.  Guffey,  52  W.  Va.  88.  43 
S.  E.  101.     A  gas  or  oil  lease,  to  extend  so  long  as  gas  and  oil  may  be  found 
in   paying  quantities,   is  not  void  for  uncertainty  as  to  term.     DICKEY  v. 
COFFEYVILLE  VITRIFIED  BRICK  &  TILE  CO.,  69  Kan.  106,  70  Pac.  398. 

24  "It  is  well  settled  in  West  Virginia  that  a  lease  of  this  character  is  not 
a  grant  of  property  in  the  oil  or  in  the  land,  but  merely  a  grant  of  posses- 
sion for  the  purpose  of  searching  for  and  procuring  oil.     The  title  is  inchoate, 
and  for  the  purpose  of  exploration  only,  until  the  oil  is  found.     If  it  is  not 
found,  no  estate  vests  in  the  lessee."     HUGGINS  v.  DALEY,  99  Fed.  60fi.  608, 


476  OIL   AND   GAS   LEASES.  (Ch.  23 

title  to  the  oil  or  gas  does  not  even  vest  on  discovery,  nor  at  any  time 
prior  to  extraction.25  It  is  held  in  Pennsylvania  that  under  an  oil  lease 
for  a  fixed  period  and  for  as  long  thereafter  as  oil  is  found  in  paying 
quantities,  the  lessor  to  receive  one-eighth  of  the  oil  produced,  the  ex- 
piration of  the  fixed  period  without  oil  being  found  in  paying  quantities 
converts  the  tenancy  as  to  the  surface  of  the  land  into  a  tenancy  in 
the  nature  of  a  tenancy  at  will.26  Moreover,  the  principle  that  oil  and 
gas  leases  will  be  construed  more  strongly  against  the  lessee  works,  not 
only  to  delay  the  vesting  of  an  estate  in  the  lessee,  but  also  to  compel 
him  to  a  diligent  search  for  and  extraction  of  the  minerals.27  When  his 
search  for  the  product  is  successful,  he  becomes  answerable  for  the 
rental  stipulated  in  the  contract.28  The  fact  that  the  lessee  has  to  do 
something  affirmative  gives  the  lease  mutuality.29 

Oil  and  Gas  Leases  That  are  Genuine  Leases. 

The  third  kind  of  oil  or  gas  lease  is  where  a  present  estate  in  the  land 
and  the  landowner's  qualified  interest  in  the  minerals  are  vested  in  the 
lessee,  to  be  divested  if  the  obligations  of  the  lease  are  not  performed.30 
It  is  a  lease  where  the  genuine  relation  of  landlord  and  tenant  exists, 

40  C.  C.  A.  12,  48  L.  R.  A.  320.  See  RAWLINGS  v.  ARMEL,  70  Kan.  778, 
79  Pac.  683 ;  Lowther  Oil  Co.  v.  Miller-Sibley  Oil  Co.,  53  W.  Va.  501,  44  S. 
E.  433,  97  Am.  St.  Rep.  1027;  Brown  v.  Fowler,  65  Ohio  St.  507,  63  N.  E. 
76;  Richlands  Oil  Co.  v.  Morriss  (Va.)  61  S.  E.  762.  See,  however,  Lawson  v. 
Kirchner,  50  W.  Va.  344,  40  S.  E.  344. 

25  PARISH  FORK  OIL  CO.  v.  BRIDGE  WATER  GAS  CO.,  51  W.  Va.  583, 
42  S.  E.  655,  59  L.  R.  A.  566 ;   Kelly  v.  Keys,  213  Pa.  295,  62  Atl.  911,  110  Am. 
St.  Rep.  547.     See  note  17,  supra. 

26  CAS  SELL   v.    CROTHERS,    193    Pa.    359,    44   Atl.    446.     See   American 
Window  Glass  Co.  v.  Indiana  Natural  Gas  &  Oil  Co.,  37  Ind.  App.  439,  76  N. 
E.  1006;    Indiana  Natural  Gas  &  Oil  Co.  v.  Pierce,  34  Ind.  App.  523,  68  N. 
E.  691,  73  N.  E.  194;    Chaney  v.  Ohio  &  I.  Oil  Co.,  32  Ind.  App.  193,  69  N. 
E.  477;    Diamond  Plate  Glass  Co.  v.  Echelbarger,  24  Ind.  App.  124,  55  N.  E. 
233;    Murdock-West  Co.  v.  Logan,  69  Ohio  St.  514,  69  N.  E.  984. 

2  T  Aye  v.  Philadelphia  Co.,  193  Pa.  451,  44  Atl.  555,  74  Am.  St.  Rep.  696; 
Huggins  v.  Daley,  99  Fed.  606,  40  C.  C.  A.  12,  48  L.  R.  A.  320 ;  Parish  Fork 
Oil  Co.  v.  Bridgewater  Gas  Co.,  51  W.  Va.  583,  42  S.  E.  655,  59  L.  R.  A.  566 ; 
Elk  Fork  Oil  &  Gas  Co.  v.  Jennings  (C.  C.)  84  Fed.  839  (affirmed,  sub  nom. 
Foster  v.  Elk  Fork  Oil  &  Gas  Co.,  90  Fed.  178,  32  C.  C.  A.  560). 

28  WILSON  v.  PHILADELPHIA  CO.,  210  Pa.  484,  60  Atl.  149. 

29  Ingle  v.  Bottoms,  160  Ind.  73,  66  N.  E.  160. 

so  DUKE  v.  HAGUE,  107  Pa.  57;  Brown  v.  Beecher,  120  Pa.  590,  15  Atl. 
608;  lams  v.  Carnegie  Natural  Gas  Co.,  194  Pa.  72,  45  Atl.  54;  Chicago  &  A. 
Oil  &  Mining  Co.  v.  United  States  Petroleum  Co.,  57  Pa.  83;  Gale  v.  Pe- 
troleum Co.,  6  W.  Va.  200.  See  Kitchen  v.  Smith,  101  Pa.  452;  Heller  v. 
Dailey,  28  Ind.  App.  555,  63  N.  E.  490;  Haskell  v.  Button,  53  W.  Va.  206,  44 
S.  E.  533.  A  grant  of  oil  or  gas  while  in  the  earth  passes  nothing  which  can 
be  the  subject  of  an  ejectment  or  other  real  action.  Watford  Oil,  etc.,  Co. 
v.  Shipman,  233  111.  9,  84  N.  E.  53. 


§  127)  KINDS   OF   OIL   AND   GAS   LEASES.  477 

and  seems  to  be  more  like  a  lease  for  tillage  than  it  is  like  a  lease 
for  the  mining  or  quarrying  of  solid  minerals.31  Under  such  a  lease  it 
seems  that  the  lessee  has  such  title  that,  where  the  lessor  has  stipulated 
that  no  other  well  shall  be  driven  on  his  lands  near  the  lessee's  land, 
except  for  the  lessor  and  his  neighbors,  the  lessee  may  have  an  injunc- 
tion against  a  stranger  who  is  threatening  to  bore  a  well  in  the  lessor's 
land,  although  the  stranger  is  not  intruding  on  the  leased  land,  and  al- 
though the  lessee  has  not  yet  struck  oil  or  gas.32 

Because  of  the  rule  that  oil  and  gas  leases  are  construed  more 
strongly  in  favor  of  the  lessor  and  against  the  lessee,  it  will  seldom 
happen  that  the  lease  will  pass  the  lessor's  qualified  property  in  the 
oil  or  gas,  or  anything  more  than  an  easement  in  the  surface,  prior  to 
the  actual  discovery  and  appropriation  of  the  oil  or  gas ;  and  it  is 
therefore  with  the  second  class  of  oil  and  gas  leases,  rather  than  the 
first  or  third,  that  the  courts  have  mainly  to  deal.33 

si  WETTENGED  v.  GORMLEY,  160  Pa.  559,  28  Atl.  934,  40  Am.  St.  Rep. 
733.  See,  also,  Lowther  Oil  Co.  v.  Miller-Sibley  Oil  Co.,  53  W.  Va.  501,  44 
S.  E.  433,  97  Am.  St.  Rep.  1027. 

32  Indianapolis  Natural  Gas  Co.  v.  Kibbey,  135  Ind.  357,  35  N.  E.  392.  See 
Brown  v.  Spilman,  155  U.  S.  665,  15  Sup.  Ct.  245,  39  L.  Ed.  304.  On  neces- 
sary parties  to  such  an  injunction  suit,  see  Steelsmith  v.  Fisher  Oil  Co.,  47  W. 
Va.  391,  35  S.  E.  15. 

3s  See  Shepherd  v.  McCalmont  Oil  Co.,  38  Hun,  37.  "While  most  of  the 
cases  cited  have  gone  upon  the  ground  of  abandonment,  the  governing  prin- 
ciple in  all  oil  leases  of  the  character  under  consideration  is  that  the  discovery 
and  production  of  oil  is  a  condition  precedent  to  the  continuance  or  vesting 
of  any  estate  in  the  demised  premises ;  that  such  leases  vest  no  present  title 
in  the  lessee,  and  If,  at  any  time,  the  lessee  has  the  option  to  suspend  opera- 
tions, the  lease  is  no  longer  binding  on  the  lessor,  because  of  want  of  mutu- 
ality ;  and,  where  the  only  consideration  is  prospective  royalty  to  come  from 
exploration  and  development,  failure  to  explore  and  develop  renders  the  agree- 
ment a  mere  mudum  pactum,  and  works  a  forfeiture  of  the  lease,  for  it  is  of 
the  very  essence  of  the  contract  that  work  should  be  done."  HUGG1NS  v. 
DALEY,  99  Fed.  606,  40  C.  C.  A.  12,  48  L.  R.  A.  320. 


478  OIL   AND   GAS   LEASES.  (Ch.  23 

THE    ORDINARY   OBLIGATIONS    OF   LESSORS   AND   LESSEES. 

128.  The  lessor's  ordinary  covenants,  implied  where  not  expressed, 
are  that  the  lessee  shall  have  the  right  to  enter  and  shall 
have  quiet  enjoyment,  and  the  lessee's  ordinary  covenants  are 
to  start  work  promptly  and  to  use  reasonable  diligence  in 
sinking  enough  wells  to  utilize  the  supply  of  oil  and  gas. 

The  lessor's  obligations  under  the  ordinary  gas  and  oil  lease  are 
simple.  The  grant  of  a  right  to  drill  for  oil  and  gas  on  the  lessor's 
premises  does  not  carry  with  it  any  implied  covenant  that  oil  or  gas 
exists  there,  in  paying  quantities  or  otherwise.3*  The  lessor  does, 
however,  impliedly  covenant  that  the  lessee  shall  have  the  right  to  en- 
ter and  shall  have  quiet  enjoyment.35  The  lessor  must  be  careful  not  to 
take  oil  or  gas  from  the  premises  to  the  injury  of  the  lessee,  even 
though  he  takes  it  from  lands  reserved  from  the  lease,  provided  there 
is  no  reservation  of  the  right  to  take  oil  or  gas.36 

The  lessee's  obligations  under  the  ordinary  gas  and  oil  lease  are 
more  fundamental.  They  are:  (1)  To  comply  with  the  express  pro- 
visions of  the  lease; 37  (2)  to  start  work  in  the  manner  and  at  the  time 

34  But  where  both  parties  believe  that  an  oil-producing  well  is  being  trans- 
ferred, and  it  has  really  been  salted  by  previous  owners,  a  rescission  of  the 
transfer  may  be  had.  Rowland  v.  Cox,  28  Ky.  Law  Rep.  307,  89  S.  W.  215. 

ss  KNOTTS  v.  McGREGOR,  47  W.  Va.  566,  35  S.  E.  899.  But  see  Chambers 
v.  Smith,  183  Pa.  122,  38  Atl.  522.  An  absolute  conveyance  of  oil  lands  by 
the  lessor,  without  reserving  the  lessee's  right  of  entry  to  drill  for  oil,  is  a 
constructive  eviction.  MATHEWS  v.  PEOPLE'S  NATURAL  GAS  CO.,  179 
Pa.  165,  36  Atl.  216. 

SB  Lynch  v.  Burford,  201  Pa.  52,  50  Atl.  228;  Fanker  v.  Anderson,  173  Pa. 
86,  34  Atl.  434. 

37  Gillespie  Tool  Oo.  v.  Wilson,  123  Pa,  19,  16  Atl.  36.  An  oil  lease  gives 
the  lessee  no  right  to  a  gas  well  developed  by  him.  Palmer  v.  Truby,  136 
Pa.  556,  20  Atl.  516.  Under  a  lease  where  the  rights  of  the  lessee  depend  up- 
on the  finding  of  oil  in  paying  quantities,  the  jury,  in  determining  whether 
the  oil  or  gas  can  be  marketed  at  a  reasonable  profit,  must  take  into  ac- 
count the  distance  to  market  and  the  expense  of  marketing.  IAMS  v.  CAR- 
NEGIE NATURAL  GAS  CO.,  194  Pa.  72,  45  Atl.  54.  A  paying  well  normally 
means  one  that  pays  to  operate  after  it  is  sunk.  "But  if  a  well,  being  down, 
pays  a  profit,  even  a  small  one,  over  the  operating  expenses,  it  is  producing  in 
'paying  quantity,'  though  it  may  never  repay  its  cost,  and  the  operation  as  a 
whole  may  result  in  a  loss.  Few  wells,  except  the  very  largest,  repay  cost  un- 
der a  considerable  time,  and  many  never  do ;  but  that  is  no  reason  why  the 
first  loss  should  not  be  reduced  by  profits,  however  small,  in  continuing  to  op- 
erate. The  phrase  'paying  quantities,'  therefore,  is  to  be  construed  with  refer- 
ence to  the  operator,  and  by  his  judgment  when  exercised  in  good  faith." 
YOUNG  v.  FOREST  OIL  CO.,  194  Pa.  243,  250,  251,  45  Atl.  121;  Lowther  Oil 
Co.  v.  Miller-Sibley  Oil  Co.,  53  W.  Va.  501,  44  S.  E.  433,  97  Am.  St.  Rep.  1027. 
See,  also,  cases  in  note  14,  supra. 


§  128)         ORDINARY   OBLIGATIONS   OF   LESSORS   AND   LESSEES.  479 

fixed  in  the  lease,  or,  if  none  is  fixed,  then  in  a  reasonable  time,38  and 
to  prosecute  it  continuously  and  diligently  to  its  termination; 89  (3)  to 
exercise  good  faith  in  drilling  and  working  enough  wells  both  to  get 
out  with  reasonable  promptitude  the  oil  and  gas  found  and  to  prevent 
loss  by  drainage  to  other  wells.40 

as  Starn  v.  Huffman  (W.  Va.)  59  S.  E.  179;  Mills  v.  Hartz  (Kan.)  94  Pac. 
142.  Logan  Natural  Gas  &  Fuel  Co.  v.  Great  Southern  Gas  &  Oil  Co.,  120 
Fed.  623,  61  C.  C.  A.  359.  See  Consumers'  Gas  Trust  Co.  v.  Worth,  163  Ind. 
141,  71  N.  E.  489;  National  Oil  &  Pipe  Line  Co.  v.  Teel,  95  Tex.  586,  68  S. 
W.  979;  Id.  (Tex.  Civ.  App.)  67  S.  W.  545.  "The  smaller  the  tract  of  land 
demised,  the  more  important  is  the  need  of  prompt  exploration  and  develop- 
ment, because  the  lessor  is  entitled  to  his  royalty  as  promptly  as  it  can  be  had, 
and  delay  endangers  the  drainage  of  oil  and  gas  from  the  demised  premises 
through  wells  in  its  immediate  vicinity."  FEDERAL  OIL  CO.  v.  WESTERN 
OIL  CO.  (C.  C.)  112  Fed.  373,  375. 

39  AYE  v.  PHILADELPHIA  CO.,  193  Pa.  451,  44  Atl.  555,  74  Am.  St.  Rep. 
696;    Cleminger  v.  Baden  Gas  Co.,  159  Pa.  16,  28  Atl.  293;    Henderson  v.  Fer- 
rell,  183  Pa.  547,  38  Atl.  1018;    Parish  Fork  Oil  Co.  v.  Bridgewater  Gas  Co., 
51  W.  Va.  583,  42  S.  E.  655,  59  L.  R.  A.  566;   J.  M.  Guffey  Petroleum  Co.  v. 
Oliver  (Tex.  Civ.  App.)  79  S.  W.  884;    Elk  Fork  Oil  &  Gas  Co.  v.  Jennings 
(C.  C.)  84  Fed.  839  (affirmed  sub  nom.  Foster  v.  Elk  Fork  Oil  &  Gas  Co.,  90 
Fed.  178,  32  C.  C.  A.  560) ;    HUGGINS  v.  DALEY,  99  Fed.  606,  40  C.  O.  A.  12, 
48  L.  R.  A.  320.     See  Price  v.  Black,  126  Iowa,  304,  101  N.  W.  1056;    Vene- 
docia  Oil  &  Gas  Co.  v.  Robinson,  71  Ohio  St.  302,  73  N.  E.  222,  104  Am.  St. 
Rep.  773;    Florence  Oil  &  Refining  Co.  v.  Orinan,  19  Colo.  App.  79,  73  Pac. 
628 ;   Buffalo  Valley  Oil  &  Gas  Co.  v.  Jones,  75  Kan.  18,  88  Pac.  537.    Time  is 
of  the  essence  in  agreements  relative  to  mining  property.     Waterman  v.  Banks, 
144  U.  S.  394,  403,  12  Sup.  Ct.  646,  36  L.  Ed.  479. 

"Where  an  oil  lease,  to  run  for  a  number  of  years,  provides  for  the  comple- 
tion of  a  test  well  within  a  certain  time,  and  states  what  shall  be  done  if 
oil  is  found  in  paying  quantities,  but  does  not  provide  what  shall  be  done  if 
the  test  well  proves  dry,  there  is  an  implied  obligation  on  the  lessee,  when 
the  test  well  does  prove  dry,  to  proceed  further  with  the  exploration  and 
development  of  the  land  with  reasonable  diligence  according  to  the  usual 
course  of  the  business,  and  a  failure  to  do  so  amounts  to  an  abandonment, 
which  will  sustain  a  re-entry  by  the  lessor.  AYE  v.  PHILADELPHIA  CO., 
193  Pa.  451,  44  Atl.  555,  74  Am.  St.  Rep.  696.  See  Rawlings  v.  Armel,  70  Kan. 
778,  79  Pac.  683.  To  constitute  abandonment  proper,  however,  there  must 
be  both  an  intent  to  abandon  and  an  actual  relinquishment  of  the  leased 
premises.  LOWTIIER  OIL  CO.  v.  MILLER-SIBLEY  OIL  CO.,  53  W.  Va. 
501,  44  S.  E.  433,  97  Am.  St.  Rep.  1027 ;  Phillips  v.  Hamilton  (Wyo.)  95  Pac. 
846. 

40  J.  M.  Guffey  Petroleum  Co.  v.  Jeff  Chaison  Townsite  Co.  (Tex.  Civ.  App.) 
107  S.  W.  609.     See  Coffinberry  v.  Sun  Oil  Co.,  68  Ohio  St.  488,  67  N.  E.  1069. 
This  last  obligation  will  also  be  implied  in  some  states  in  cases  where  the 
lease  is  silent  on  the  subject.     Allegheny  Oil  Co.  v.  Snyder,  106  Fed.  764,  45 
C.  C.  A.  604;    BREWSTER  v.  LANYQN  ZINC  CO.,  140  Fed.  801,  72  C.  C.  A. 
213;   Acme  Oil  &  Mining  Co.  v.  Williams,  140  Cal.  681,  74  Pac.  296;   Barnsclall 
v.  Boley  (C.  C.)  119  Fed.  191;    American  Window  Glass  Co.  v.  Williams,  30 
Ind.  App.  685,  66  N.  E.  912;  Gadbury  v.   Ohio  &  I.  Consol.  Natural  &  II- 


480  OIL   AND   GAS   LEASES.  (Cll.  23 

A  failure  by  the  lessee  to  comply  with  the  lease  may  amount  to  an 
abandonment,41  and  in  extreme  cases  may  be  held  to  do  so,  regardless 
of  the  lessee's  actual  intent.42 

luminating  Gas  Co.,  162  Ind.  9,  67  N.  E.  259,  62  L.  R.  A.  895;  Adams  v. 
Stage,  18  Pa.  Super.  Ct.  308;  Phillips  v.  Hamilton  (Wyo.)  95  Pac.  846.  "The 
extent  of  the  development  and  number  of  wells  to  be  drilled,  and  as  to  the 
protection  of  the  lines,  is  often,  if  not  usually,  expressed  in  the  lease;  and 
that  is  certainly  the  better  practice.  When  the  extent  of  the  development 
and  protection  of  lines  is  provided  for  in  the  lease,  there  can  be  no  implied 
covenant  for  further  development  and  protection  of  lines.  The  implied  cov- 
enant arises  only  when  the  lease  is  silent  on  the  subject."  HARRIS  v.  OHIO 
OIL  CO.,  57  Ohio  St.  118,  128,  48  N.  E.  502.  See  McKnight  v.  Manufacturers' 
Natural  Gas  Co.,  146  Pa.  185,  23  Atl.  164,  28  Am.  St.  Rep.  790 ;  Poe  v.  Ulrey, 
233  111.  56,  84  N.  E.  46 ;  Brewster  v.  Lanyon  Zinc  Co.,  140  Fed".  801,  72  C.  C. 
A.  213.  Where  there  is  no  way  to  market  the  product  of  wells  if  they  are 
sunk,  the  remedy  for  breach  of  an  implied  covenant  to  drill  wells  has  been 
held  to  be,  not  forfeiture,  but  an  action  for  damages.  Poe  v.  Ulrey,  233 
111.  56,  84  N.  E.  46.  That  the  remedy  for  a  breach  of  an  implied  covenant 
in  an  oil  lease  is  ordinarily  not  by  forfeiture,  but  by  an  action  for  damages, 
is  asserted  in  CORE  v.  NEW  YORK  PETROLEUM  CO..  52  W.  Va.  276,  43 
S.  E.  128.  But  see  CONSUMERS'  GAS  TRUST  CO.  v.  LITTLER,  162  Ind. 
320,  70  N.  E.  363;  Hodges  v.  Brice,  32  Tex.  Civ.  App.  358,  74  S.  W.  590; 
Gadbury  v.  Ohio  &  I.  Consol.  Natural  &  Illuminating  Gas  Co.,  162  Ind.  9,  67 
N.  E.  259,  62  L.  R.  A.  895.  That  equity  may  cancel  the  lease  for  delay  in 
development,  see  Lowther  Oil  Co.  v.  Miller-Sibley  Oil  Co.,  53  W.  Va.  501,  44 
S.  E.  433,  97  Am.  St.  Rep.  1027;  Starr  v.  Huffman  (W.  Va.)  59  S.  E.  179. 
Where  the  same  person  holds  an  oil  well  on  two  adjacent  farms,  he  will  not 
be  allowed  to  drill  an  oil  well  to  drain  the  oil  off  of  one  of  the  farms  to  the 
detriment  of  the  other.  Barnard  v.  Monongahela  Natural  Gas  Co.,  216  Pa. 
362,  65  Atl.  801. 

41  AYE  v.  PHILADELPHIA  CO.,  193  Pa.  451,  44  Atl.  555.     See,  also,  note 
39,  supra. 

42  WILMORE  COAL  OO.  v.  BROWN  (C.  C.)  147  Fed.  931. 


§  129)  OTHEE   MINING    CONTRACTS  AND   LEASES. 

CHAPTER  XXIV. 
OTHER  MINING  CONTRACTS  AND  LEASES. 

129.  Prospecting  or  Grub-Staking  Contracts. 

130.  Mining  Licenses  and  Leases. 

131-132.     Leases   and   Options   and   Title   Bonds. 

133.  Working  Contracts. 

134.  Ore    Contracts. 

Our  review  of  the  peculiarities  of  oil  and  gas  leases  prepares  the 
way  for  a  consideration  of  the  peculiarities  of  other  mining  leases  ana 
contracts.  Only  those  matters  which  differentiate  mining  contracts 
and  leases  from  ordinary  real  estate  contracts  and  leases  will  be  con- 
sidered. 

PROSPECTING  OR  GRUB-STAKING  CONTRACTS. 

129.  Prospecting  or  grub-staking  contracts  are  agreements  by  which 
miners,  in  consideration  of  supplies  furnished  to  them,  under- 
take to  prospect  for  and  locate  claims  to  be  held  by  all  par- 
ties in  certain  agreed  shares.  Unless  the  supplies  are  fur- 
nished, a  grub-staking  agreement  is  without  consideration, 
and  does  not  bind  the  prospector.  If  they  are  furnished,  the 
rights  of  the  outfitters  are  fully  protected  at  law  and  in 
equity. 

The  kind  of  contract  common  in  the  mining  region,  whereby  a  min- 
er is  furnished  supplies  by  people  who  wish  to  locate  mining  claims, 
and  in  return  agrees  to  prospect  for  and  to  locate  such  claims  for  all 
concerned  in  the  shares  agreed  upon,  has  caused  considerable  litiga- 
tion. One  reason  has  been  that  such  contracts  have  almost  universally 
been  regarded  as  not  within  the  statute  of  frauds.1  They  have  been 

i  SHEA  v.  NILIMA,  133  Fed.  209,  66  C.  O.  A.  263 ;  Cascaden  v.  Dunbar, 
2  Alaska,  408,  157  Fed.  62,  84  C.  C.  A.  566 ;  MURLEY  v.  ENNIS,  2  Colo.  300 ; 
MEYLETTE  v.  BRENNAN,  20  Colo.  242,  38  Pac.  75 ;  Moritz  v.  Lavelle,  77  Cal. 
10,  18  Pac.  803,  11  Am.  St.  Rep.  229 ;  Raymond  v.  Johnson,  17  Wash.  232,  49 
Pac.  492,  61  Am.  St.  Rep.  908 ;  Doyle  v.  Burns,  123  Iowa,  488,  99  N.  W.  195 ; 
Eberle  v.  Carmichael,  8  N.  M.  169,  42  Pac.  95;  Id.,  8  N.  M.  696,  47  Pac.  717. 
See  Reagan  v.  McKibben,  11  S.  D.  270,  76  N.  W.  943.  The  case  of  CRAW  v. 
WILSON,  22  Nev.  385,  40  Pac.  1076,  supposed  to  be  contrary  to  the  foregoing, 
holds  that  where  an  oral  partnership  has  been  formed  under  which  some 
mining  locations  are  made  and  other  property  obtained,  and  one  partner  ac- 
quires for  himself  still  other  mining  locations,  without  employing  partner- 
ship capital  in  their  acquisition,  the  excluded  partner  cannot  have  a  trust 
declared.  The  matter  has  since  been  set  at  rest  for  Nevada  by  a  statute 
COST.MIN.L.— 31 


482  OTHER    MINING   CONTRACTS   AND   LEASES.  (Ch.  24 

subject  to  all  those  disputes  as  to  terms  which  naturally  attend  im- 
portant verbal  contracts.2 

While  such  contracts  are  sometimes  referred  to  as  mining  partner- 
ships, they  are  not  such  unless,  in  addition  to  covering  the  location  and 
holding  in  common  of  mining  claims,  they  provide  for  the  develop- 
ment of  the  claims,  and  actually  do  develop  them  for  the  joint  benefit 
of  the  contractors.  So  far  as  the  contracts  to  locate  claims  contemplate 
only  the  discovery  work  essential  to  location,  and  the  co-ownership 
which  is  to  result  from  the  location  of  the  claims,  they  are  not  mining 
partnership  contracts,  but  are  simply  "grub-staking"  or  prospecting 
contracts.3  A  grub-staking  contract  does  not  constitute  a  partnership, 
unless  the  agreement  extends  beyond  the  mere  furnishing  of  supplies 
as  a  consideration  of  a  participation  in  the  results  of  discoveries.4 

Before  the  miner's  obligation  under  a  prospecting  contract  can  be 
enforced  against  him,  the  other  party  to  the  contract  must  furnish  the 
supplies  agreed  upon;  If,  therefore,  the  supplies  are  not  furnished  to 
him,  the  miner  may  go  ahead  and  locate  lodes  in  his  own  right,  with- 
out regard  to  the  contract.5  But  if  the  supplies  are  furnished,  and  the 
miner  locates  claims  in  his  own  name,  he  holds  the  title  thus  ac- 
quired, or  the  property  for  which  it  is  exchanged,  in  trust  for  himself . 
and  the  outfitter  in  the  proportions  called  for  by  the  prospecting  con- 
tract,8 and  must  account  for  the  proceeds  received  on  any  sale  of  such 

making  grub-stake  contracts  void  unless  recorded.  If  acknowledged  and  re- 
corded, they  are  made  prima  facie  evidence  in  all  cases  where  the  title  to 
mining  locations  is  in  question.  Laws  Nev.  1907,  p.  370,  c.  174.  In  Oregon 
such  contracts  seem  to  be  void  unless  recorded.  B.  &  C.  Cornp.  Or.  §  3985.  In 
Idaho  they  may  be  recorded  to  make  them  constructive  notice.  Civ.  Code 
Idaho  1901,  §  2784.  A  verbal  release  of  a  grub-staking  contract  was  upheld  in 
Eubanks  v.  Petree,  1  Alaska,  427. 

2  See  Abbott  v.  Smith,  3  Colo.  App.  264,  266,  32  Pac.  843. 

a  See,  however,  Berry  v.  Woodburn,  107  Cal.  504,  512,  40  Pac.  802,  804, 
where  such  contracts  are  called  "qualified  partnerships."  See,  also,  Boucher 
v.  Mulverhill,  1  Mont.  306;  Lawrence  v.  Robinson,  4  Colo.  567. 

While  prospecting  contracts  are  partnerships  of  a  kind,  the  term  "mining 
partnership"  is  strictly  applicable  only  where  there  is  actual  joint  working  of 
the  claim.  DORSET  v.  NEWCOMER,  121  Cal.  213,  53  Pac.  557;  Anaconda 
Copper  Mining  Co.  v.  Butte  &  Boston  Min.  Co.,  17  Mont.  519,  43  Pac.  924.  See, 
also,  cases,  cited  in  chapter  XXV,  note  6,  infra.  For  that  reason  the  term  "pros- 
pecting contract,"  or  the  miners'  term,  "grub-staking  contract,"  should  be  kept 
to  apply  to  the  kind  of  contract  here  considered. 

*  See  Costello  v.  Scott  (Nev.)  93  Pac.  1. 

6  MURLEY  v.  ENNIS,  2  Colo.  300;  Miller  v.  Butterfield,  79  Cal.  62,  21 
Pac.  543.  See  Windmuller  v.  Clarkson,  2  Alaska,  298. 

6  MEYLETTE  v.  BRENNAN,  20  Colo.  242,  38  Pac.  75 ;  Marks  v.  Gates,  2 
Alaska,  519;  Mack  v.  Mack.  39  Wash.  190,  81  Pac.  707.  See  Stewart  v. 
Douglas,  148  Cal.  511,  83  Pac.  699.  But,  after  the  prospecting  contract 


§  129)  PROSPECTING   OR  GRUB-STAKING   CONTRACTS.  483 

title.*  Where  the  supplies  are  so  inadequate  as  to  make  it  apparent 
to  anybody  that  the  property  located  is  not  acquired  by  means  of  the 
grub-stake  furnished  and  pursuant  to  the  grub-stake  contract,  the  Cali- 
fornia court  refuses  to  compel  a  conveyance  by  the  miner  to  the  alleg- 
ed outfitter.7  A  contract  to  exchange  interests  in  existing  claims  for 
supplies  is  not  a  grub-staking  contract.8 

There  has  been  some  question  as  to  the  amount  of  proof  necessary 
to  establish  an  oral  prospecting  contract  sufficiently  to  make  the  miner 
a  trustee  of  the  claims  located.  In  Idaho,  for  instance,  it  was  at  first 
declared  that  a  mere  preponderance  of  the  evidence  was  not  enough, 
but  that  the  evidence  must  be  so  clear  and  certain  as  to  leave  no  well- 
founded  doubt  in  the  mind  of  the  court.9  Since  then,  however,  it  has 
been  held  in  Idaho  that  the  courts  "should  not  refuse  to  enforce  these 
grub-stake  agreements  simply  because  a  plaintiff  cannot  produce  that 
great  preponderance  of  evidence  which  reaches  a  moral  certainty  and 
precludes  all  reasonable  doubt/' 10  The  latter  seems  the  better  doc- 
trine where  a  statute  does  not  require  a  writing,  for  all  that  should  be 
required  of  evidence  in  such  cases  is  that  it  be  convincing.11 

is  rescinded  by  mutual  agreement  of  the  parties,  one  of  them  may  relocate 
unperfected  locations,  and,  in  the  absence  of  fraud,  will  hold  such  locations 
free  from  any  trust.  Page  v.  Summers,  70  Gal.  121,  12  Pac.  120;  McLaugh- 
lin  v.  Thompson,  2  Colo.  App.  135,  29  Pac.  816 ;  Eubanks  v.  Petree,  1  Alaska, 
427. 

*  But  the  complaining  party  must  act  promptly,  or  he  may  be  denied  any 
rights.  McKenzie  v.  Coslett,  28  Nev.  65,  78  Pac.  976. 

7  PRINCE  v.  LAMB,  128  Cal.  120,  60  Pac.  689. 

a  Roberts  v.  Date,  123  Fed.  238,  59  C.  C.  A.  242. 

»  Rice  v.  Rigley,  7  Idaho,  115,  61  Pac.  290.  Compare  Copper  River  Min- 
ing Co.  v.  McClellan,  2  Alaska,  134. 

10  MORROW  v.  MATTHEW,  10  Idaho,  423,  79  Pac.  196.     The  court  there 
says  that  the  rule  requiring  evidence  so  convincing  as  to  leave  no  reasonable 
doubt  is  properly  applied  when  one  seeks  to  declare  a  trust  as  against  a 
record  title  conveyed  to  a  defendant  by  a  third  person,  but  has  no  applica- 
tion where  the  defendant,  as  locator  of  a  mining  claim,  creates  his  own  rec- 
ord title. 

11  "Grub-stake  contracts  will  be  enforced  by  the  courts,  but  only  as  other 
contracts ;   that  is  to  say,  it  is  not  enough  for  parties  to  assert  that  they  have 
rights,  in  order  to  secure  legal  protection,  but  they  must  be  able  to  prove  in 
each  case  a  clear  and  definite  contract,  and  that  by  the  terms  and  conditions 
of  such  contract,  and  compliance  therewith  on  their  part,  rights  have  become 
vested."     Cisna  v.  Mallory  (C.  C.)  84  Fed.  851,  854. 


484  OTHER   MINING   CONTRACTS  AND  LEASES.  (Ch.  24 


MINING  LICENSES  AND  LEASES. 

130.  In  distinguishing  between  licenses,  leases,  and  sales  of  mineral 
in  place,  it  is  the  intention  of  the  parties  gathered  from  the 
terms  of  the  instrument,  and  not  the  form  of  the  instrument, 
that  determines  which  kind  of  interest  exists  in  the  given 
case. 

The  common-law  rule  is  that  the  lessee  of  real  property  may  work 
already  opened  mines,  but  cannot  open  new  ones.  But  the  lease  may 
expressly,  or  by  implication  from  express  powers,  give  the  right  to  open 
new  mines.  If  a  leasehold  estate  is  created  in  the  land,  with  a  right  to 
take  the  minerals,  the  instrument  is  a  genuine  lease.12  On  the 
other  hand,  if  an  attempt  is  made  by  the  instrument  to  pass  title 
to  the  minerals  in  place,  there  is  really  a  sale  of  the  mineral.13  If  no 
title  to  the  minerals  passes,  and  a  leasehold  estate  even  is  not  created  in 
the  so-called  lessee,  the  instrument  merely  creates  a  license.14  It  is  not 
the  form  of  the  instrument,  but  rather  the  intention  of  the  parties 
gathered  from  its  terms,  that  determines  whether  it  is  a  lease,  or  passes 
title  to  the  minerals,  or  is  only  a  license*15  , 

12  Gaboon  v.  Bayaud,  123  N.  Y.  298,  25  N.  E.  376 ;  Young  v.  Ellis,  91  Va. 
297,  21  S.  E.  480;  PAUL  v.  CRAGNAZ,  25  Nev.  293,  312-314,  59  Pac.  857, 
60  Pac.  983,  47  L.  R.  A.  540 ;  MALCOMSON  v.  WAPPOO  MILLS  (C.  C.)  85 
Fed.  907;  Raynolds  v.  Hanna  (C.  C.)  55  Fed.  783;  Appeal  of  Hope  (Pa.) 
?  Atl.  23;  Harlau  v.  Lehigli  Coal  &  Navigation  Co.,  35  Pa.  287.  See  Wil- 
kins  v.  Abell,  26  Colo.  462,  58  Pac.  612;  Fuhr  v.  Dean,  26  Mo.  118,  69  Am. 
Dec.  484;  National  Light  &  Thorium  Co.  v.  Alexander,  80  S.  C.  10,  61  S. 
E.  214. 

is  PLUMMER  v.  HILLSIDE  COAL  &  IRON  CO.,  104  Fed.  208,  43  C.  C.  A. 
490 ;  In  re  Lazarus'  Estate,  145  Pa.  1,  23  Atl.  372 ;  Kingsley  v.  Hillside  Coal 
&  Iron  Co.,  144  Pa.  613,  23  Atl.  250;  Delaware,  L.  &  W.  R.  Co.  v.  Sanderson, 
109  Pa.  583,  1  Atl.  394,  58  Am.  Rep.  743 ;  Hobart  v.  Murray,  54  Mo.  App.  249 ; 
Edwards  v.  McClurg,  39  Ohio  St.  41  (but  see  Buchannan  v.  Cole,  57  Ho.  App. 
11) ;  Dorr  v.  Reynolds,  26  Pa.  Super.  Ct.  139.  It  is  none  the  less  a  sale 
that  the  coal  conveyed  is  to  be  taken  out  within  a  fixed  term.  HO  SACK 
v.  CRILL,  204  Pa.  97,  53  Atl.  640.  But  a  so-called  "sale"  may  really  be  "a 
lease  without  impeachment  of  waste."  Coolbaugh  v.  Lehigh  &  Wilkes-Barre 
Coal  Co.,  213  Pa.  28,  62  Atl.  94,  4  L.  R.  A.  (N.  S.)  207. 

i*  Wheeler  v.  West,  71  Cal.  126,  11  Pac.  871.  See  Silsby  v.  Trotter.  29  N. 
J.  Eq.  228.  Such  a  license  is  not  such  an  interest  in  the  land  as  to  be  tax- 
able as  real  property.  Board  of  Sup'rs  of  Hancock  County  v.  Imperial  Naval 
Stores  Co.  (Miss.)  47  So.  177.  Even  a  quitclaim  deed  may  be  so  worded  as 
to  be  a  license.  BAKER  v.  CLARK,  128  Cal.  181,  60  Pac.  677.  A  parol 
license  passes  no  title  to  ores  not  severed,  even  though  the  licensee  has  ex- 
pended money  in  mining.  McCullagh  v.  Rains,  75  Kan.  458,  89  Pac.  1041 . 

15  CONSOLIDATED  COAL  CO.  v.  PEERS,  150  111.  344,  37  N.  E.  937;  PAUL 
v.  ORAGNAZ,  25  Nev.  293,  59  Pac.  857,  60  Pac.  983,  47  L.  R.  A.  540 ;  Baker 
v.  Clark,  128  Cal.  181,  60  Pac.  677;  Tennessee  Oil,  Gas  &  Mineral  Co.  v* 


§  130)  MINING   LICENSES   AND   LEASES.  485 

Since  a  mere  license  must  be  revocable  at  will,18  and,  being  only  a 
personal  privilege,  must  also  be  nonassignable,17  it  is  comparatively 
easy  to  tell  when  one  is  dealing  with  such  a  right.  But  because  a  li- 
cense may  be  coupled  with  an  interest,  and  so  may  be  irrevocable18  and 
assignable,19  it  may  be  doubtful  in  a  given  case  whether  an  irrevocable 
license  or  a  lease  exists.  While  it  is  true  that  an  exclusive  license  may 
exist,20  the  fact  that  a  right  given  is  exclusive  of  the  creator  of  the 
right,  and  is  exclusive  of  other  people  later  empowered  by  him,  goes 
far  to  show  that  the  instrument  giving  the  right  is  a  lease.21  But  if 
it  appears  that  the  persons  given  the  so-called  lease  were  not  bound 
to  do  anything,  but  could  enter  and  work  "if  they  saw  fit,"  the  lack 
of  mutuality  in  the  arrangement  makes  the  right  a  mere  revocable  li- 
cense.22 

The  rules  applicable  to  ordinary  leases  govern  in  mining  leases. 
There  is,  in  addition,  an  implied  covenant  that  the  lessee  will  work  the 
claim  with  reasonable  diligence,  or  forfeit  his  interest  in  all  leases, 

Brown,  131  Fed.  696,  65  C.  C.  A.  524.  See  Hosack  v.  Grill,  204  Pa.  97,  53  Atl. 
G40;  Couch  v.  Welsh,  24  Utah,  36,  66  Pac.  600.  Coal  in  place  is  subject  to  a 
sale  absolute,  a  conditional  sale,  or  a  lease.  Gallagher  v.  Hicks,  216  Pa.  243, 
<JS  Atl.  623. 

is  EAST  JERSEY  IRON  CO.  v.  WRIGHT,  32  N.  J.  Eq.  248.  See  Desloge 
v.  Pearce,  38  Mo.  588;  Lockwood  v.  Lunsford,  56  Mo.  68.  A  promise  not  to 
revoke  will  not  make  it  irrevocable.  Entwhistle  v.  Henke,  211  111.  273,  71  N. 
E.  990,  103  Am.  St.  Rep.  196.  Even  the  payment  of  a  consideration  will  not 
make  it  irrevocable.  Huff  v.  McCauley,  53  Pa.  206,  91  Am.  Dec.  203.  In 
any  event  a  revocation  cannot  make  trespasses  of  acts  already  done  under 
the  license.  FURR  v.  DEAN,  26  Mo.  116,  69  Am.  Dec.  484.  The  licensee  has 
property  merely  in  the  ore  actually  taken  from  the  mine.  CLARK  v.  WALL, 
32  Mont.  219,  79  Pac.  1052. 

17  MANNING  v.  FRAZIER,  96  111.  279.  See  Dark  v.  Johnston,  55  Pa.  164, 
93  Am.  Dec.  732.  But  see  Muskett  v.  Hill,  5  Bing.  N.  C.  694,  where,  how- 
ever, the  deed  operated  both  as  a  license  and  as  a  grant  of  the  ore,  and  hence 
there  was  not  a  mere  license. 

is  HALL  v.  ABRAHAM,  44  Or.  477,  75  Pac.  882;  Silsby  v.  Trotter,  29  N. 
J.  Eq.  228;  Grubb  v.  Bayard,  2  Wall.  Jr.  (U.  S.)  81,  Fed.  Cas.  No.  5,849. 
See  Bingo  Min.  Co.  v.  Felton,  78  Mo.  App.  210. 

19  Muskett  v.  Hill,  5  Bing.  N.  C.  694.    A  revocable  license  may  become  by 
fstoppel  irrevocable  and  assignable.     Hosford  v.  Metcalf,  113  Iowa,  240,   84 
N.  W.  1054. 

20  Muskett  v.  Hill,  5  Bing.  N.  C.  694;    Funk  v.  Haldeman,  53  Pa.  229. 

21  CONSOLIDATED  COAL  CO.  v.  PEERS,  150  111.  344,  37  N.  E.  937.     See 
Stlnson  v.  Hardy,  27  Or.  584,  41  Pac.  116. 

22  wheeler  v.  West,  71  Cal.  126,  11  Pac.  871;    Id.,  78  Cal.  95,  20  Pac.  45. 
In  that  case  there  was  no  chance  to  uphold  the  arrangement  as  a  lease  by  im- 
plying a  promise  to  work,  and  hence  the  case  is  like  the  revocable  license 
cases  considered  in  the  chapter  on  oil  and  gas  leases.     But  see  Woodside  v. 
Ciceroni,  93  Fed.  1,  35  C.  C.  A.  177. 


486  OTHER   MINING   CONTRACTS   AND   LEASES.  (Cll.  24 

where  only  royalty  of  so  much  per  ton  is  to  be  paid.23  There  is  in  some 
cases  an  implied  covenant  on  the  lessor's  part  that  the  land  contains 
minerals  in  paying  quantities;24  but  in  other  cases  there  is  no  such 
covenant.25  As  in  the  case  of  other  leases,  mining  leases  may  be  aban- 
doned.26 It  has  been  held  in  a  recent  case  that  a  lessee  of  a  lower  level 
in  a  mine  has  no  cause  of  action  against  the  lessor  for  the  willful  or 
negligent  caving  in  of  higher  levels  by  those  to  whom  the  lessor  leased 
the  higher  levels,  for  the  reason  that  the  lessor  was,  at  the  most,  guilty 
only  of  nonfeasance.27 

Some  forms  of  leases  used  by  the  United  States  in  leasing  mineral 
Indian  lands  are  given  in  the  appendix.28 

23  Brown  v.  Wilmore  Coal  Co.,  153  Fed.  143,  82  C.  C.  A.  295;  Sharp  v. 
Behr  (C.  C.)  117  Fed.  864;  Shenandoah  Land  &  Anthracite  Coal  Co.  v.  Hise, 
92  Va.  238,  23  S.  E.  303 ;  Rorer  Iron  Co.  v.  Trout,  83  Va.  397,  2  S.  E.  713,  5 
Am.  St.  Rep.  285 ;  Conrad  v.  Morehead,  89  N.  C.  31.  See  Aye  v.  Philadelphia 
Co.,  193  Pa.  451,  44  AtK  555,  74  Am.  St.  Rep.  696 ;  National  Light  &  Thorium 
Co.  v.  Alexander,  80  S.  C.  10,  61  S.  E.  214.  Where  the  lessor  in  a  mining 
lease  evicted  the  lessee,  and  thereafter  extracted  a  large  amount  of  valuable 
ore,  and  the  lessee  sued  for  damages,  the  court  put  on  the  lessor  the  burden 
of  proving  the  amount  and  value  of  the  ores  extracted.  Isabella  Gold  Min. 
Co.  v.  Glenn,  37  Colo.  165,  86  Pac.  349.  The  phrase  "smelter  returns"  in 
a  contract  should  ordinarily  be  construed  to  mean  returns  from  the  ore,  less 
the  smelting  charges,  without  deducting  the  charges  for  hauling,  freight  and 
switching.  Frank  v.  Bauer,  19  Colo.  App.  445,  75  Pac.  930. 

2  *  BROOKS  v.  COOK,  135  Ala.  219,  34  So.  960;  Blake  v.  Lobb's  Estate, 
110  Mich.  608,  68  N.  W.  427.  See  Diamond  Iron  Min.  Co.  v.  Buckeye  Iron 
Min.  Co.,  70  Minn.  500,  73  N.  W.  507 ;  Boyer  v.  Fulmer,  176  Pa.  282,  35  Atl. 
236;  Bannan  v.  Graeff,  186  Pa.  648,  40  Atl.  805;  Fritzler  v.  Robinson,  70 
Iowa,  500,  31  N.  W.  61.  For  an  instance  where  the  lessor  was  allowed  to  re- 
scind because  of  mutual  mistake  as  to  the  existence  of  coal  in  tlie  leased  land 
and  because  of  other  reasons,  see  Bluestone  Coal  Co.  v.  Bell,  38  W.  Va.  297, 
18  S.  E.  493.  See,  also,  Muhlenberg  v.  Henning,  116  Pa.  138,  9  Atl.  144. 

25  See  CLIFTON  v.  MONTAGUE,  40  W.  Va.  207,  21  S.  E.  858,  33  L.  R.  A. 
449,  52  Am.  St.  Rep.  872;    Clark  v.  Babcock,  23  Mich.  164.     BAMFORD  v. 
LEHIGH  ZINC  &  IRON  CO.  (C.  C.)  33  Fed.  677.     If  the  land  does  not  con- 
tain mineral,   the   consideration  for  the  rental  may  fail.     As  to  the  latter 
point,  however,  see  Wharton  v.  Stoutenburgh,  46  N.  J.  Law,  151. 

26  Wilmore  Coal  Co.  v.  Brown  (C.  C.)  147  Fed.  931. 

27  PETERSON  v.  BULLION-BECK  &  CHAMPION  MIN.  CO.  (Utah)  91  Pac. 
1095. 

28  The  state  of  Washington  has  a  statute  governing  the  leasing  of  state  min- 
eral lands.    Laws  Wash.  1901,  p.  313,  c.  151. 


131-132)        LEASES   AND   OPTIONS   AND   TITLE   BONDS. 


LEASES    AND    OPTIONS    AND    TITLE    BONDS. 


487 


131.  An   option   to   purchase    may   be   accompanied  by   a  lease,    andn 

when  so  accompanied,  may  end  with  the  lease,  or  may  survive 
it. 

132.  A  title  bond  is  an  offer  under  seal  to  convey  a  good  title  if  the  of- 

fer's terms  are  complied  with.  It  is,  on  principle,  irrevoca- 
ble for  the  time  specified,  or  until  after  a  reasonable  time  if 
no  time  is  specified;  but  the  cases  seem  to  hold  that  unless  it  is 
actually  supported  by  a  genuine  consideration  it  is  revocable 
at  any  time. 

Very  often  there  is  coupled  with  a  lease  either  an  option  to  purchase 
or  a  bond  for  title.  Even  a  license  to  enter  and  mine,  when  accom- 
panied by  an  option  to  purchase  the  mining  claim  by  paying  a  fixed 
sum,  on  which  sum  the  licensee  is  to  be  credited  with  the  net  proceeds 
of  working  paid  to  the  seller,  has  been  held  to  become  so  coupled  with 
an  interest  as  to  be  irrevocable,  except  as  in  the  contract  provided.29 
On  the  other  hand,  a  lease  and  an  option  to  purchase,  though  contained 
in  one  instrument,  may  be  separate  and  independent  agreements,  so  as 
to  make  the  option  survive  a  forfeiture  of  the  lease.30  Time  is  of  the 
essence  of  an  option  to  purchase  mining  property.31 

With  reference  to  title  bonds,  whereby  the  owner  of  a  mining  claim 
by  bond  binds  himself  to  convey  a  good  title  to  the  obligee  in  the 
bond,  if  the  latter  makes  certain  payments  at  the  time  or  times  specified, 
there  can  be  no  question  that  the  bond  constitutes  an  offer  under  seal  to 
sell  at  the  amount  named,  to  be  paid  at  the  time  or  times  specified. 
Whether  that  offer  can  be  accepted  in  any  other  way  than  by  payment 
or  tender  of  payment  as  called  for  therein  will  depend  wholly  upon 
the  proper  construction  of  the  instrument.  In  the  ordinary  case  it 
would  seem  to  be  performance  by  the  obligee,  rather  than  a  promise  to 
perform,  that  is  called  for; 32  but  sometimes  a  bilateral  contract  is  call- 
ed for,  and  hence  is  complete  when  the  offer  is  duly  accepted.33 

Being  under  seal,  the  offer  is,  on  principle,  irrevocable  during  the 

2»CLARNO  v.  GRAYSON,  30  Or.  Ill,  46  Pac.  426;  HALL  v.  ABRAHAM, 
44  Or.  477,  75  Pac.  8S2.  An  option  to  purchase  with  a  license  to  extract  ore, 
instead  of  a  covenant  running  with  the  land,  was  found  to  exist  in  Smith  v. 
Jones,  21  Utah,  270,  60  Pac.  1104. 

30  MATHEWS  SLATE  GO.  v.  NEW  EMPIRE  SLATE  CO.  (C.  C.)  122  Fed. 
972. 

si  Merk  v.  Bowery  Min.  Co.,  31  Mont.  298,  78  Pac.  519;  Settle  v.  Winters, 
2  Idaho,  215,  10  Pac.  216.  On  the  surrender  of  an  option  see  K.  P.  Min.  Co. 
v.  Jacobson,  30  Utah,  115,  83  Pac.  728,  4  L.  R.  A.  (N.  S.)  755. 

32  See  Largey  v.  Bartlett,  18  Mont.  265,  44  Pac.  962. 

ss  Pennsylvania  Min.  Co.  v.  Smith,  207  Pa.  210,  56  Atl.  426. 


488  OTHER   MINING    CONTRACTS   AND   LEASES.  (Ch.  24: 

time  which  it  specifies,  84  or  until  the  lapse  of  a  reasonable  time  if  no 
time  is  specified ;  but  the  few  cases  involving  mining  title  bonds  hold 
that,  unless  there  is  a  genuine  consideration  for  them,  such  bonds  are 
either  revocable  offers  85  or  are  absolutely  invalid.38 


WORKING  CONTRACTS. 

133.    It  seems  that   working   contracts   are   sometimes   formed   which 
do  not  amount  to  a  mining  partnership. 

In  addition  to  the  contracts  above  set  forth  are  contracts  to  work  a 
mine  for  cash  payments  or  a  share  in  the  proceeds.  For  instance,  a' 
contract  by  which  a  third  person  agreed  with  the  owner  of  a  mining 
claim  to  work  the  mine,  and  pay  one-half  the  expenses,  and  receive 
one-half  the  product,  has  been  held  not  to  -constitute  a  mining  part- 
nership, but  instead  a  contract  to  work  the  mine  on  shares.37  Such  a 
case  raises  a  close  question  of  fact.  In  the  ordinary  case  of  letting  a 
contract  for  the  sinking  of  a  shaft  or  the  running  of  a  cross  cut  no 
difficulty  arises ;  the  case  being  governed  by  the  principles  applicable 
to  ordinary  contracts.38 

3*  Willard  v.  Tayloe,  8  Wall.  (U.  S.)  557,  19  L.  Ed.  501;  O'Brien  v.  Boland, 
166  Mass.  481,  44  N.  E.  602. 

s  5  GORDON  v.  DARNELL,  5  Colo.  302.  See  Finnerty  v.  Fritz,  5  Colo.  174. 
An  option  to  purchase,  not  under  seal,  may  be  a  revocable  offer.  SNOW  v. 
NELSON  (C.  C.)  113  Fed.  353. 

36  SMITH  v.  REYNOLDS  (C.  C.)  8  Fed:  696.    For  a  case  finding  a  sale  with 
a  valid  option,  see  Pittsburg  Vitrified  Pav.  &  Bldg.  Brick  Co.  v.  Bailey,  76  Kan. 
42,  90  Pac.  803,  12  L.  R.  A.  (N.  S.)  745. 

37  STUART  v.  ADAMS,  89  Cal.  367,  26  Pac.  970;    Hudepohl  v.  Liberty  Hill 
Con.  Min.  &  Water  Co.,  80  Cal.  553,  22  Pac.  339.    So  where  the  plaintiff  worked 
the  defendant's  mine,  and  agreed  that  the  defendant's  mill  should  treat  the  ore 
at  a  certain  price  plus  one-half  the  proceeds  above  plantiff's  expense  of  ex- 
tracting the  ore,  it  was  held  that  no  partnership  existed.     Vietti  v.  Nesbitt, 
22  Nev.  390,  41  Pac.  151. 

s  s  Time  is  of  the  essence  of  such  a  contract.  Montrozona  Gold  Min.  Co.  v. 
Thatcher,  19  Colo.  App.  371,  75  Pac.  595.  In  the  absence  of  an  express  pro- 
vision in  the  contract,  or  of  a  custom  requiring  it,  the  contractor  need  not  tim- 
ber a  shaft  contracted  for.  No.  5  Min.  Co.  v.  Bruce,  4  Colo.  293.  He  may  have 
to  do  so,  however,  to  make  such  a  shaft  as  the  other  party  is  bound  to  accept 
in  fulfillment  of  the  contract,  as,  for  instance,  where  because  of  the  crum- 
bling nature  of  the  ground  the  shaft,  if  untimbered,  will  be  dangerous  to  use. 
Unless  the  contract  so  specifies,  it  seems  that  an  extension  of  an  old  shaft 
contracted  for  need  not  follow  the  dip  of  the  vein,  if  the  course  of  the  old 
shaft  is  continued.  Buckeye  Min.  &  Mill.  Co.  v.  Carlson,  16  Colo.  App.  440, 
66  Pac.  168.  Where  a  contract  called  for  a  shaft  to  be  sunk  500  feet  on  a 
vein,  and  at  330  feet  the  vein  gave  out  entirely,  the  contractor  was  held  ex- 
cused from  further  performance.  Woodworth  v.  McLean,  97  Mo.  325,  11  S. 


g  134)  OKI-:  CONTRACTS.  489 


ORE    CONTRACTS. 

134.  Contracts  may  be  made  for  the  sale  of  ore  either  after  sever- 
ance or  while  in  place  in  the  mine.  Care  should  he  taken  to 
comply  with  the  statute  of  frauds. 

In  connection  with  working  contracts  should  be  considered  contracts 
for  the  sale  of  ore.  Where  the  ore  to  be  sold  has  already  been  severed 
from  the  vein,  it  is,  of  course,  personalty,  and  the  ordinary  rules  as  to 
sales  of  personalty  apply.  Where  the  ore  is  contained  in  the  collection 
of  waste  rock  and  debris  known  as  a  "dump,"  and  is  therefore  held  to 
be  real  estate,39  it  has  been  intimated  that  a  contract  for  its  sale  is 
within  the  statute  of  frauds.40  Where  the  contract  is  to  sell  ore  after 
it  has  been  severed  from  the  vein,  the  ordinary  rules  of  contract  and 
of  the  law  of  damages  apply. 

Assays. 

A  word  is  necessary  in  regard  to  assays.  An  assay  is  the  determina- 
tion of  the  amount  of  gold,  silver,  lead,  or  other  metals  in  a  given  lot 
of  ore,  by  ascertaining  how  much  is  contained  in  a  small  sample  select- 
ed as  representative.41  The  whole  value  of  an  assay  depends  upon  the 
representative  character  of  the  sample42  and  upon  the  thoroughness 
with  which  the  assayer  extracts  the  values  from  the  sample. 

W.  43.    To  sink  three  holes  to  bed  rock  requires  only  that  some  part  of  each 
hole  extend  to  bed  rock.     Meehan  v.  Nelson,  137  Fed.  731,  70  C.  C.  A.  165. 

3»  ROGERS  v.  COONEY,  7  Nev.  213.  Refuse  matter  from  washing  iron, 
ore,  which  refuse  contained  less  iron  than  could  profitably  be  worked,  was 
held  not  to  be  "iron  ore,"  within  the  meaning  of  a  lease.  Appeal  of  Erwin 
(Pa.)  12  Atl.  149. 

40  Foster  v.  Lumbermen's  Min.  Co.,  68  Mich.  188,  200,  36  N.  W.  171.     See 
dicta  in  Smart  v.  Jones,  15  C.  B.  (N.  S.)  717,  where  a  mere  promise  to  let  the 
plaintiff  dig  and  carry  away  cinders  from  a  cinder  tip,  for  breach  of  which 
promise  the  plaintiff's  only  remedy  was  an  action  for  damages,  was  held  not 
to  amount  to  an  incorporeal  hereditament,  requiring  creation  by  deed. 

41  "Gold,  silver,  and  platinum  are  assayed  for  the  number  of  ounces  per  ton 
of  ore ;   lead,  copper,  zinc,  and  the  base  metals  generally,  for  the  per  cent,  of 
the  minerals  in  the  ore."     Morrison's  Mining  Rights  (13th  Ed.)  376. 

42  See  Pittsburg  Concentrating  &  Mining  Co.  v.  Glick,  7  Colo.  App.  43,  42 
Pac.  188 ;    Golden  Reward  Min.  Co.  v.  Buxton  Min.  Co.,  97  Fed.  413,  38  C.  C. 
A.  228.     Because  it  is  more  representative,  a  mill  sample  is  a  better  test  of 
value  than  a  car  sample  is.    FOX  v.  HALE  &  NORCROSS  SILVER  MIN.  CO., 
108  Cal.  369,  41  Pac.  308.    For  a  statement  of  the  method  of  taking  mill  sam- 
ples at  a  certain  mill,  see  Chisholm  v.  Eagle  Ore  Sampling  Co.,  144  Fed.  670, 
75  O.  C.  A.  472. 


490  MINING   PARTNERSHIPS  AND   TENANCIES   IN   COMMON.      (Ch.  25 

CHAPTER  XXV. 
MINING  PARTNERSHIPS  AND  TENANCIES  IN  COMMON. 

135.  Mining  Partnerships. 

135a.  Differences  between  Mining  Partnerships  and  Ordinary  Partnerships. 

136.  Tenancies  in  Common  of  Mining  Property. 
136a.  Accounting  between  Co-tenants. 
136b.  Fiduciary  Relationship  of  Co-tenants. 

136c.  Relations  Between  Surface  and  Subsurface  Owners. 

MINING  PARTNERSHIPS. 

135.  A  mining  partnership  is  that  relationship  short  of  ordinary 
partnership  which  the  law  affirms  where  two  or  more  persons, 
•who  own  or  for  exploitation  acquire  a  mining  claim,  actually 
engage  together  in  working  the  claim. 

So  closely  connected  with  prospecting  or  "grub-staking"  contracts 
as  to  require  consideration  with  them  are  mining  partnerships.  A  min- 
ing partnership,  so  called,  is  something  different  from  a  regular 
commercial  partnership;  but,  to  avoid  any  misunderstanding,  it  must 
be  stated  that  just  as  a  prospecting  contract  may  also  involve  a  min- 
ing partnership, '  so  what  at  first  sight  seems  to  be  a  mining  partner- 
ship may  be  an  ordinary  partnership.1  The  peculiar  kind  of  partner- 
ship known  distinctively  as  a  "mining  partnership"  is  all  that  is  dis- 
cussed here. 

State  statutes  regarding  mining  partnerships  are  in  general  merely 
declaratory  of  what  is  the  law  in  the  absence  of  legislation.2  A  mining 
partnership  exists  where  two  or  more  persons  who  own  a  mining 
claim,  or  who  acquire  one  for  development  purposes,  actually  engage 
together  in  the  working  of  the  claim.3  Though  no  express  agreement 
of  partnership  is  necessary,4  mere  co-tenancy  is  not  enough  to  con- 

1  See  Costello  v.  Scott  (Nev.)  93  Pac.  1 ;    Bybee  v.  Hawkett  (C.  C.)  12  Fed. 
649;   Haskins  v.  Curran,  4  Idaho,  573,  43  Pac.  559;   Decker  v.  Howell,  42  Cal. 
636 ;   Kimberly  v.  Arms,  129  U.  S.  512,  9  Sup.  Ct.  355,  32  L.  Ed.  764.    Compare 
Freeman  v.  Hemenway,  75  Mo.  App.  611 ;  Lawrence  v.  Robinson,  4  Colo.  567. 

2  CONGDON  v.  OLDS,  18  Mont.  487,  489,  46  Pac.  261 ;  FERRIS  v.  BAKER, 
127  Cal.  520,  59  Pac.  937. 

s  Stuart  v.  Adams,  89  Cal.  367,  26  Pac.  970 ;  Dorsey  v.  Newcomer,  121  Cal. 
213,  53  Pac.  557;  Marks  v.  Gates,  2  Alaska,  519;  Walker  v.  Bruce  (Colo.)  97 
Pac.  250.  See  note  6,  infra. 

*  Manville  v.  Parks,  7  Colo.  128,  134,  2  Pac.  212 ;  Dale  &  Bennett  v.  Goldori- 
rod  Min.  Co.,  110  Mo.  App.  317,  85  S.  W.  929;  DURYBA  v.  BTTRT.  2*  Pol.  K«l : 
Snyder  v.  Burnham,  77  Mo.  52.  That  an  agreement  of  mining  partnership, 


§  135a)  MINING   PARTNERSHIPS.  491 

stitute  a  mining  partnership.8    A  mining  partnership  arises  only  when 
there  is  a  joint  working  of  the  mining  claim.9 


SAME— DIFFERENCES    BETWEEN   MINING    PARTNERSHIPS    AND 
ORDINARY  PARTNERSHIPS. 

135a.  The  chief  difference  between  mining  partnerships  and  ordinary 
partnerships  lies  in  the  fact  that  there  is  no  delectus  personse 
in  mining  partnerships.  From  this  results  the  fact  that  the 
implied  authority  of  one  mining  partner  to  bind  the  others 
is  extremely  limited. 

A  mining  partnership  exhibits  striking  differences  from  the  ordinary 
commercial  partnerships. 

In  the  first  place,  in  a  mining  partnership  there  is  no  delectus  per- 
sonae.  One  partner  may  retire,  sell  his  interest  to  a  stranger,  or  die, 
without  destroying  the  partnership.7  A  sale  may  be  made  by  one 

where  one  exists,  is  not  within  the  statute  of  frauds,  see  cases  cited,  chapter 
XXIV,  note  1.  A  mining  partnership  may  exist,  even  though  the  partners  agreed 
that  they  should  not  be  liable  as  partners.  Bentley  v.  Brossard  (Utah)  94  Pac. 
736. 

5  HARTNEY  v.  GOSLING,  10  Wyo.  346,  68  Pac.  1118 ;  First  Nat.  Bank  v. 
G.  V.  B.  Min.  Co.  (C.  C.)  89  Fed.  449;  G.  V.  B.  Min.  Co.  v.  First  Nat.  Bank. 
95  Fed.  35,  35  C.  C.  A.  510;  Tuck  v.  Downing,  76  111.  71.  A  mining  partner- 
ship is  a  cross  between  a  tenancy  in  common  and  a  regular  partnership.  Bates 
on  Partnership,  §  14. 

e  Hartney  v  Gosling,  10  Wyo.  346,  68  Pac.  1118,  98  Am.  St.  Rep.  1005.  See 
note  3,  supra.  See  First  Nat.  Bank  v.  G.  V.  B.  Min.  Co.  (C.  C.)  89  Fed.  440 ; 
Caley  v.  Coggwell,  12  Colo.  App.  394,  55  Pac.  939 ;  Lyman  v.  Schwartz,  13  Colo. 
App.  318,  57  Pac.  735;  Ferris  v.  Baker,  127  Cal.  520,  59  Pac.  937;  Madar  v. 
Norman,  13  Idaho,  585,  92  Pac.  572 ;  Higgins  v.  Armstrong,  9  Colo.  38,  10  Pac. 
232 ;  Meagher  v.  Reed,  14  Colo.  335,  24  Pac.  681,  9  L.  R.  A.  455 ;  Anaconda  Cop- 
per Mining  Co.  v.  Butte  &  Boston  Min.  Co.,  17  Mont.  519,  43  Pac.  924 ;  Marks 
v.  Gates,  2  Alaska,  519.  It  exists,  although  the  partners  are  only  lessees. 
Kirchner  v.  Smith,  61  W.  Va.  434,  58  S.  E.  614.  Where  some  furnish  the  mon- 
ey, and  the  others  do  the  work,  and  all  are  to  share  equally  in  results,  there  is 
a  mining  partnership.  LYMAN  v.  SCHWARTZ,  13  Colo.  App.  318.  57  Pac.  735  ; 
CHILDERS  v.  NEELY,  47  W.  Va.  70,  34  S.  E.  828,  49  L.  R.  A.  468,  81  Am. 
St.  Rep.  777.  But  the  partnership  extends  to  the  work  and  its  profits,  and  not 
necessarily  to  the  title  to  the  claim.  McMahon  v.  Meehan,  2  Alaska,  278.  In 
PRINCE  v.  LAMB,  128  Cal.  120,  60  Pac.  689,  it  was  held  that  though  a  con- 
tract for  the  formation  of  a  mining  partnership  in  the  future  possibly  exist- 
ed, an  actual  mining  partnership  did  not.  At  the  most  there  was  a  grub-stak- 
ing contract.  In  Dodge  v.  Chambers  (Colo.)  96  Pac.  178,  the  court  found  that 
loans  were  made  to  a  corporation  by  its  shareholders,  and  hence  no  partner- 
ship existed  between  the  contributing  shareholders. 

7  KAHN  v.  CENTRAL  SMELTING  CO.,  102  U.  S.  641,  26  L.  Ed.  266  :  BLACK- 
MARK  v.  WILLIAMSON,  57  W.  Va.  249,  50  S.  E.  254 ;  Childers  v.  Neely,  47  W. 
Va.  70,  34  S.  E.  328,  49  L.  R.  A.  468,  81  Am.  St.  Rep.  777.  A  retiring  partner 


492  MINING    PARTNERSHIPS    AND    TENANCIES    IN    COMMON.      (Cll. 

partner  against  the  protest  of  the  others,  and  yet  the  purchaser  becomes 
a  partner.8  The  death  of  one  partner  neither  dissolves  the  partner- 
ship nor  gives  to  the  surviving  partners  as  such  any  right  to  control 
the  property.9 

In  the  second  place,  and  growing  out  of  the  fact  that  there  is  no 
delectus  personse,  it  is  the  rule  that  in  mining  partnerships  there  is  no 
general  implied  authority  of  any  of  the  partners  to  bind  any  of  the 
others.10  Even  in  mining  partnerships,  however,  authority  to  do  so 
is  implied  to  the  limited  extent  that  such  authority  is  necessary  and  usu- 
al in  the  case  of  such  partnerships.11  Where,  on  due  notice  to  the 
world,  a  co-tenant  mining  partner  withdraws  from  the  partnership, 
which  he  may  do  when  he  wills,12  he  is  restored  to  his  regular  condi- 
tion as  tenant  in  common,  subject  merely  to  such  liabilities  as  were 
incurred  by  the  partnership  prior  to  his  withdrawal.13  The  remain- 
ing partners  do  not  lose  the  lien  they  have  on  the  partnership  prop- 
erty, which  is  a  right  in  equity  to  have  partnership  assets  go  for  part- 
nership debts.14  A  purchaser  from  a  retiring  partner  takes  subject 

must  give  notice,  of  course,  to  persons  who  have  dealt  with  the  partnership, 
if  he  wishes  to  escape  any  further  liability  to  them.  Dellapiazza  v.  Foley, 
112  Gal.  380,  44  Pac.  727. 

s  KAHN  v.  CENTRAL  SMELTING  CO.,  102  U.  S.  641,  26  L.  Ed.  266 ;  Bis- 
sell  v.  Foss,  114  U.  S.  252,  5  Sup.  Ct.  851,  29  L.  Ed.  126 ;  Kimberly  v.  Arms, 
129  U.  S.  512,  9  Sup.  Ct  355,  32  L.  Ed.  764 ;  Nisbet  v.  Nash,  52  Cal.  540 ;  CHIL- 
DERS  v.  NEELY,  47  W.  Va.  70,  34  S.  E.  828,  49  L.  R.  A.  468,  81  Am.  St.  Rep. 
777 ;  Taylor  v.  Castle,  42  Cal.  367. 

»  JONES  v.  CLARK,  42  Cal.  180. 

10  Skillman  v.  Lachman,  23  Cal.  198,  83  Am.  Dec.  96;   DURYEA  v.  BURT, 
28  Cal.  569;    Decker  v.  Howell,  42  Cal.  636;    Bentley  v.  Brossard  (Utah)  94 
Pac.  736. 

11  Bentley  v.  Brossard  (Utah)  94  Pac.  736 ;    HARTNEY  v.  GOSLING,  10 
Wyo.  346,  68  Pac.  1118 ;    Meagher  v.  Reed,  14  Colo.  335,  24  Pac.  681,  9  L.  R. 
A.  455;    Manville  v.  Parks,  7  Colo.  128,  2  Pac.  212;    Abbott  v.  Smith,  3  Colo. 
App.  264,  32  Pac.  843;    Lyman  v.  Schwartz,  13  Colo.  App.  318,  57  Pac.  735; 
Nolan  v.  Lovelock,  1  Mont.  224. 

But  even  this  limited  authority  is  subject  to  the  rule  that  those  who  own  a 
majority  of  the  shares  or  interests  in  the  partnership  shall  control.  Dougher- 
ty v.  Creary,  30  Cal.  291,  89  Am.  Dec.  116 ;  CHILDERS  v.  NEELEY,  47  W.  Va. 
70,  34  S.  E.  828,  49  L.  R.  A.  408,  81  Am.  St.  Rep.  777;  Nolan  v.  Lovelock,  1 
Mont.  224;  Taylor  v.  Castle,  42  Cal.  367;  BLACKMARR  v.  WILLIAMSON, 
57  W.  Va.  249,  50  S.  E.  254. 

12  Lawrence  v.  Robinson,  4  Colo.  567. 

is  SLATER  v.  HAAS,  15  Colo.  574,  25  Pac.  10S9.  22  Am.  St.  Rep.  440.  See 
First  Nat.  Bank  v.  G.  V.  B.  Min.  Co.  (C.  C.)  89  Fed.  449. 

14  DURYEA  v.  BURT,  28  Cal.  569;  CHILDERS  v.  NEELEY,  47  W.  Va. 
70,  34  S.  E.  828,  49  L.  R.  A.  468,  81  Am.  St.  Rep.  777.  See  Beck  7.  O'Connor. 
21  Mont.  109,  53  Pac.  94;  G.  V.  B.  Min.  Co.  v.  First  Nat.  Bank.  95  Fed.  35, 
35  C.  C.  A.  510;  Ervin  v.  Masterman,  16  Ohio  Cir.  Ct.  62,  8  Ohio  Dec.  516. 


§  136)  TENANCIES   IN    COMMON   OF   MINING   PROPERTY.  493 

to  the  lien,  even  though  he  does  not  become  personally  liable  for  the 
partnership  debts  contracted  prior  to  his  purchase.15 

In  conclusion,  it  should  be  noted  that  the  copartners  hold  fiduciary 
relations  toward  one  another,  which  will  prevent  one  acquiring  for 
himself  property  which  rightfully  belongs  to  the  partnership.16  But  a 
location  made  by  one  partner  after  dissolution  upon  a  discovery  prior 
to  dissolution  will  not  inure  to  the  benefit  of  the  other  partner,  unless 
the  failure  to  locate  during  the  partnership  was  fraudulent.17 


TENANCIES  IN   COMMON   OF  MINING  PROPERTY. 

136.  The  mere  fact  that  one  is  a  tenant  in  common  and  works  the 
claim  does  not  make  him  a  mining  partner  of  his  co-tenant; 
bnt  the  latter  may  call  on  him  to  account. 

Mere  co-tenancy,  as  we  have  seen,  does  not  create  a  mining  part- 
nership; 18  but  the  peculiar  nature  of  an  unpatented  mining  claim  and 
the  fact  that  any  co-tenant  can  enjoy  the  claim  only  by  more  or  less 
rapidly  exhausting  its  ore  bodies  have  contributed  to  make  special  prob- 
lems for  co-tenants  of  mining  property  and  to  differentiate  co-tenancy 
of  such  property  somewhat  from  co-tenancy  of  other  kinds  of  real 
property. 

Each  co-tenant  has  a  perfect  right  to  enter  upon  the  mining  claim 
and  work  it,19  and  to  maintain  an  action  for  its  recovery  without  join- 
As  to  what  constitutes  mining  partnership  property,  see  Dorsey  v.  Newcomer, 
121  Cal.  213,  53  Pac.  557. 

is  Jones  v.  Clark,  42  Cal.  180. 

16  KIMBERLY  v.  ARMS,  129  U.  S.  512,  9  Sup.  Ct.  355,  32  L.  Ed.  764;  Con- 
tinental Divide  Min.  Inv.  Co.  v.  Bliley,  23  Colo.  160,  46  Pac.  633 ;  Settembre  v. 
Putnam,  30  Cal.  490;  Brown  v.  Bryan,  5  Idaho,  145,  51  Pac.  995;  McMahon 
v.  Meehan  &  Larson,  2  Alaska,  278. 

IT  JENNINGS  v.  RICKARD,  10  Colo.  395,  15  Pac.  677.  See  Pierce  v.  Pierce, 
55  Mich.  629,  22  N.  W.  81.  One  mining  partner  may  sell  out,  it  seems,  at  a 
higher  price  than  his  partners  get.  Harris  v.  Lloyd,  11  Mont.  390,  38  Pac. 
736,  28  Am.  St.  Rep.  475. 

i  s  'Where  some  co-owners  engage  in  working  a  mine,  and  others  do  not,  the 
former  are  mining  partners,  and  the  latter  are  merely  co-tenants.  Madar  v. 
Norman,  13  Idaho,  585,  92  Pac.  572.  See,  also,  Garside  v.  Norval,  1  Alaska,  19. 

i»  Kahn  v.  Old  Telegraph  Min.  Co.,  2  Utah,  13 ;  McCORD  v.  OAKLAND 
QUICKSILVER  MIN.  CO.,  64  Cal.  134,  27  Pac.  863,  49  Am.  Rep.  686:  Marsh 
v.  Hoi  ley,  42  Conn.  453.  The  doctrine  to  the  contrary  in  Murray  v.  Haverty, 
70  111.  318,  320,  cannot  be  supported.  A  co-tenant  has  no  more  right  to  exclude 
the  other  co-tenants  from  a  tunnel  run  to  work  the  -claim  than  to  exclude  them 
from  the  claim  itself.  People  v.  District  Court,  27  Colo.  465,  62  Pac.  206.  And 
he  has  no  right  to  work  the  claim  itself  through  a  shaft  from  another  mine 
to  which  his  co-tenants  have  no  right  of  access.  Butte  &  B.  Consol.  Min.  Co. 
v.  Montana  Ore-Purchasing  Co.,  24  Mont.  125,  60  Pac.  1039.  And  no  right  to 


494  MINING   PARTNERSHIPS   AND   TENANCIES   IN   COMMON.      (Ch.  25 

ing  his  co-tenants ; 20  but  he  must  account  to  his  co-tenants  for  their 
share  of  the  ore  that  he  takes  out  and  sells.  The  other  co-tenants, 
while  entitled  to  claim  their  share  of  the  profits,  are  not  responsible 
for  any  losses,  except  that  they  cannot  claim  any  damages  if  in  fact 
the  working  co-owner  emerges  with  a  loss.21  It  is  not  waste  for  the, 
tenant  in  common  to  take  out  ore  in  minerlike  fashion,  but  may  be  a 
violation  of  a  state  statute  for  the  protection  of  co-tenants.2* 

By  statutes  in  the  different  jurisdictions  the  right  of  one  tenant  in 
common  to  sue  another  has  been  considerably  enlarged.28 


SAME— ACCOUNTING  BETWEEN  CO-TENANTS. 

136a.  The  proper  basis  for  accounting  between  co-tenants  of  mining 
property  would  seem  to  be  the  net  profits  after  the  deduction 
of  the  actually  incurred  reasonable  expenses;  but  where  the 
co-tenant  -who  works  the  claim  invites  the  others  to  join  in 
the  work,  and  they  refuse,  the  justice  of  this  rule  is  doubted 
by  some. 

The  common-law  rule  was  that  a  tenant  in  common  of  real  property 
had  no  right  to  an  account  from  his  co-tenant.  This  was  changed  by 
the  statute  of  Anne,24  which  gave  an  account  for  rents  and  profits 
actually  received  by  the  defendant  co-tenant  from  third  persons,  but 
it  gave  none  for  the  use  and  occupation  of  the  co-tenant.25  Where, 
however,  one  co-tenant  excluded  another  from  the  possession  of  the 
joint  property,  an  account  would  lie.26  If  the  co-tenant  is  not  ex- 
use  a  tunnel  on  the  claim  to  convey  ore  from  an  outside  claim.  Laesch  v.  Mor- 
ton, 38  Colo.  171,  87  Pac.  1081. 

20  Morenhaut  v.  Wilson,  52  Cal.  263;    Weese  v.  Barker,  7  Colo.  178,  2  Pac. 
919;    Binswanger  v.  Henninger,  1  Alaska,  509.     See  Melton  v.  Lambard,  51 
Cal.  258. 

21  WOLFE  v.  CHILDS  (Colo.)  94  Pac.  292;    Stickley  v.  Mulrooney,  36  Colo. 
242,  87  Pac.  547,  118  Am.  St.  Rep.  107 ;   McCORD  v.  OAKLAND  QUICKSIL- 
VER MIN.  CO.,  64  Cal.  134,  27  Pac.  863,  49  Am.  Rep.  686 ;    Edsall  v.  Merrill, 
37  N.  J.  Eq.  114.     See  Goller  v.  Felt,  30  Cal.  481. 

22  ANACONDA  COPPER  MINING  CO.  v.  BUTTE  &  BOSTON  MIN.  CO., 
17  Mont.  519,  43  Pac.  924. 

23  F6r  cases  under  the  Montana  statute,  see  Connole  v.  Boston  &  M.  Consol. 
Copper  &  Silver  Min.  Co.,  20  Mont  523,  52  Pac.  263 ;   Butte  &  B.  Consol.  Min- 
ing Co.  v.  Montana  Ore-Purchasing  Co.,  24  Mont.  125,  60  Pac.  1039;    Id.,  25 
Mont.  41,  63  Pac.  825. 

24  St.  4  Anne,  c.  16,  §  27. 

251  Tiffany,  Real  Property,  392. 

26  id.  So  it  has  been  held  that  a  lessee  of  one  co-tenant,  when  excluded  by 
the  other  co-tenant,  may  have  an  accounting,  and  may  even  recover  damages 
based  on  loss  of  profits.  PAUL  v.  CRAGNAZ,  25  Nev.  293,  59  Pac.  857,  60  Pac. 
983,  47  L.  R.  A.  540. 


§  130a)  TENANCIES   IN    COMMON    OF   MINING   PROPERTY.  495 

eluded  b/  the  one  in  possession,  there  is  a  diversity  of  views.  Mr. 
Snyder  contends  that  he  must  account,27  and  Mr.  Lindley  that  he  need 
not.28  It  is  believed  that  the  sounder  view  is  that  he  must  account.29 
In  some  states  the  matter  is  regulated  by  statutes.30 

Where  an  accounting  is  called  for,  there  are  various  rules  for 
determining  what  the  co-tenant  in  possession  must  pay.  Where  the 
complaining  co-tenant  refused  to  share  the  risks,  his  recovery  is  lim- 
ited by  some  cases  to  his  share  of  the  fair  rental  value  of  the  land.31 
The  difficulty  of  such  a  measure  of  damages  for  mining  property, 
if  it  were  possible  to  fix  a  fair  rental  value  for  such  property,  is 
that,  if  it  is  to  hold,  there  should  be  a  recovery,  even  if  the  tenant  in 
possession  has  made  a  loss.  The  same  is  true  of  the  rule  measuring 
recovery  by  the  value  of  the  ore  in  place.32  The  view  which  gives  the 
complaining  co-tenant  his  proportionate  share  of  the  profits  after  de- 
ducting all  proper  expenses,  a  view  which  clearly  applies  where  the 
defendant  has  excluded  the  plaintiff  from  the  joint  property,33  and 
where  the  defendant  has  received  royalties  from  a  lessee,34  would 
seem  to  be  the  proper  one  to  apply  to  the  case  of  mines.35  The  only 
objection  to  it  is  the  one  applicable  to  all  the  others,  namely,  that  it 
lets  a  man  who  refused  to  take  the  risk  share  the  profit.  The  answer 
to  that  would  seem  to  be  that  the  co-tenant  who  works  does  so  with 
his  eyes  open  to  the  consequences.  He  must  make  up  his  mind  wheth- 
er he  will  get  a  lease  from  his  co-tenants,  will  force  a  partition,  or 
will  abide  by  the  rules  of  co-tenancy.36 

272  Snyder  on  Mines,  §  1444. 

as  2  Lindley  on  Mines  (2d  Ed.)  §  789a. 

29  McGOWAN  v.  BAILEY,  179  Pa.  470,  36  Atl.  325;  COLEMAN  r.  COLE- 
MAN,  1  Pearson  (Pa.)  470 ;  GAGE  v.  GAGE,  66  N.  H.  282,  29  Atl.  543,  28  L.  R. 
A.  829 ;  KAHN  v.  SMELTING  CO.,  102  U.  S.  641,  646,  26  L.  Ed.  266.  But 
see  Pico  v.  Columbet,  12  Cal.  414,  73  Am.  Dec.  550.  See  Morrison's  Mining 
Rights  (13th  Ed.)  p.  334. 

so  Laws  Mont.  1899,  p.  134;  Comp.  Laws  Nev.  (1861-1900)  §  250.  See  Butte 
&  B.  Consol.  Min.  Co.  v.  Montana  Ore-Purchasing  Co.,  25  Mont.  41,  63  Pac. 
825 ;  Red  Mount  Consol.  Min.  Co.  v.  Esler,  18  Mont.  174,  44  Pac.  523. 

si  Early  v.  Friend,  16  Gratt.  (Va.)  21,  78  Am.  Dec.  649.  See  Edsall  v.  Mer- 
rill, 37  N.  J.  E<i.  114. 

32  McGowan  v.  Bailey,  179  Pa.  470,  36  Atl.  325. 

33  WILLIAMSON  v.  JONES,  43  W.  Va.  562,  27  S.  E.  411,  38  L.  R.  A.  694, 
64  Am.  St.  Rep.  891. 

34  CECIL  v.  CLARK,  49  W.  Va.  459,  39  S.  E.  202. 

s  5  WOLFE  v.  CHILDS  (Colo.)  94  Pac.  292;  Graham  v.  Pierce,  19  Gratt. 
(Va.)  28,  100  Am.  Dec.  658.  See  Ruffners  v.  Lewis'  Ex'rs,  7  Leigh  (Va.)  720, 
30  Am.  Dec.  513 ;  Martel  v.  Jennings-Heywood  Oil  Syndicate,  114  La.  351,  38 
South.  253 ;  Lone  Acre  Oil  Co.  v.  Swayne  (Tex.  Civ.  App.)  78  S.  W.  3SO. 

se  Under  the  interpretation  given  by  the  Idaho  Supreme  Court  to  a  state 
statute,  the  owner  of  a  majority  interest  in  a  claim  being  worked  by  a  co-ten- 


496        MINING   PARTNERSHIPS   AND   TENANCIES  IN   COMMON.       (Ch.  25 


SAME— FIDUCIARY    RELATIONSHIP    OF    CO-TENANTS. 

13Gb.  There  is  the  same  fiduciary  relationship  between  tenants  in 
common  of  mining  property  as  between  those  of  other  prop- 
erty. 

The  same  fiduciary  relationship  exists  between  tenants  in  common 
of  mining  property  as  of  other  property.37  An  instance  is  found  in 
a  Washington  case,  where  a  mining  company  that  had  joined  with 
several  people  in  the  location  of  a  mining  claim,  and  then,  fearing  that 
the  claim  was  located  on  the  dip  of  a  vein  apexing  within  a  senior  lo- 
cation, had  bought  a  four-sevenths  interest  in  the  senior  location,  was 
compelled  to  let  the  co-tenants  share  in  that  four-sevenths  interest 
when  it  became  apparent  that  the  senior  location  did  have  the  apex.38 

SAME-RELATIONS  BETWEEN  SURFACE  AND   SUBSURFACE 

OWNERS. 

136c.  Where  the  title  to  the  minerals  has  been  severed  from  that  to 
the  surface,  the  owner  of  the  minerals  and  the  owner  of  the 
surface  are  not  tenants  in  common  of  the  whole. 

It  would  seem  to  be  unnecessary  to  say,  except  that  the  point  has 
been  expressly  decided,  that,  where  there  has  been  such  a  severance 
that  the  title  to  the  surface  of  a  mining  claim  is  in  one  person  and  the 
title  to  the  minerals  is  in  another,  the  two  are  neither  joint  tenants  nor 
tenants  in  common,  but  each  owns  in  severalty  what  is  his.39 

ant  having  a  minority  interest  can  dictate  the  manner  in  which  the  latter  shall 
work,  because  by  interfering  the  majority  owner  converts  the  co-tenancy  into 
a  mining  partnership.  Hawkins  v.  Spokane  Hydraulic  Min.  Co.,  3  Idaho  (West) 
970,  3  Idaho,  241,  28  Pac.  433 ;  Id.  3  Idaho,  650,  33  Pac.  40.  See  Sweeney  v. 
Hanley,  126  Fed.  97,  61  C.  d  A.  153.  That  being  so,  the  majority  owner  must 
account  to  the  minority  for  the  latter's  share  of  the  profits,  if  the  majority 
owner  works  the  property.  Id. 

37  STEVENS  v.  GRAND  CENTRAL  MIN.  CO.,  133  Fed.  28,  67  C.  C.  A.  284. 
See  Royston  v.  Miller  (C.  C.)  76  Fed.  50;  Hallack  v.  Traber,  23  Colo.  14,  46 
Pac.  110 ;  Hunt  v.  Patchin  (C.  C.)  35  Fed.  815 ;  Garside  v.  Norval,  1  Alaska, 
19.  For  an  application  of  this  doctrine  to  a  case  of  relocation,  see  Van  Wag- 
enen  v.  Carpenter,  27  Colo.  449,  61  Pac.  698.  For  other  instances,  see  chap- 
ter XVII,  §  96,  supra. 

ss  CEDAR  CANYON  CONSOL.  MIN.  CO.  v.  YARWOOD,  27  Wash.  271,  67 
Pae.  749,  91  Am.  St.  Rep.  841.  Though  the  location  made  by  the  so-called  co- 
tenants  was  invalid,  because  the  vein  was  already  located,  the  mining  company 
was  nevertheless  held  bound.  In  the  absence  of  a  discovery  of  some  other 
vein  within  the  claim,  the  correctness  of  that  holding  may  be  doubted. 

39  VIRGINIA  COAL  &  IRON  CO.  v.  KELLY,  93  Va.  332.  24  S.  E.  1020; 
HUTCHINSON  v.  KLINE,  199  Pa.  564,  49  Atl.  312.  See,  also,  cases  in  chap- 
ter XXVI,  note  28,  infra. 


§  137)  CONVEYANCES  AND   LIENS. 

CHAPTER  XXVI. 

CONVEYANCES  AND  LIENS. 

137.  Necessity  of  Written  Conveyances  of  Mining  Claim* 

138.  Quitclaim  and  Warranty  Deeds. 

138a.          The  Special  "Dips,  Spurs,"  etc.,  Clause. 
138b.          After-Acquired  Title. 

139.  Easements  on  Severance. 

140.  Mortgages. 

141.  Other  Liens. 

142.  Examinations  of  Title. 

NECESSITY   OF  "WRITTEN   CONVEYANCES    OF  MINING   CLAIMS. 

137.  "While  oral  transfers  of  unpatented  mining  claims  early  re- 
ceived judicial  sanction,  it  has  long  been  settled  that  such 
claims  are  real  estate,  and  conveyances  of  them  most  conform 
to  the  requirements  of  conveyances  of  real  estate. 

In  the  early  days  of  California,  Idaho,  and  Nevada,  before  the  real 
nature  of  mining  locations  was  understood,  it  became  established  that 
a  writing  was  not  necessary  for  the  conveyance  of  a  mining  claim.1 
That  was  a  doctrine  which  grew  out  of  the  supposed  necessities  of  the 
time,  before  it  was  seen  that  a  mining  claim  was  essentially  real  prop- 
erty, and  the  doctrine  has  since  been  abandoned. 

The  doctrine  has,  however,  had  some  interesting  survivals.  In  1879 
the  United  States  Supreme  Court,  on  the  strength  of  one  of  those 
early  California  cases,2  stated  that  "a  written  conveyance  is  not  neces- 
sary to  the  transfer  of  a  mining  claim."  8  The  natural  conclusion  that 
a  mining  claim,  which  is  not  real  estate  within  the  statute  of  frauds, 
is  not  real  estate  within  a  state  statute  making  judgments  liens 
on  real  estate,*  and  is  not  an  interest  in  real  property  within  a  state 

i  JACKSON  v.  FEATHER  RIVER  &  GIBSONVILLE  WATER  CO.,  14  Cal. 
18;  TABLE  MOUNTAIN  TUNNEL  CO.  v.  STRANAHAN,  20  Oal.  198;  An- 
toine  Co.  v.  Ridge  Co.,  23  Cal.  219:  Patterson  v.  Keystone  Min.  Co.,  23  Cal. 
575 ;  Lockhart  v.  Rollins,  2  Idaho,  540,  21  Pac.  413 ;  Kinney  v.  Consolidated 
Va.  Min.  Co.,  4  Savvy.  (U.  S.)  382,  451,  452,  Fed.  Cas.  No.  7,827.  Even  in  Cali- 
fornia this  doctrine  did  not  hold  where  the  claim  was  in  the  adverse  posses- 
sion of  third  persons.  COPPER  HILL  MIN.  CO;  v.  SPENCER,  25  Cal.  18. 

*  TABLE  MOUNTAIN  TUNNEL  CO.  v.  STRANAHAN,  20  Cal.  198. 

3  UNION  CONSOL.  SILVER  MIN.  CO.  v.  TAYLOR,  100  U.  S.  37,  42,  25  L. 
Ed.  541.  See,  also,  Lockhart  v.  Rollins,  2  Idaho,.  540,  21  Pac.  413. 

*  PHOENIX  MIN.  &  MILL.  CO.  v.  SCOTT,  20  Wash.  48,  54  Pac.  777.     See, 
contra,  BUTTE  HARDWARE  CO.  v.  FRANK,  25  Mont.  344,  65  Pac.  1 ;   Brad- 

COST.MIN.L.— 32 


498  CONVEYANCES   AND   LIENS.  (Cll.  26 

statute  affecting  the  jurisdiction  of  justices  of  the  peace,5  or  with- 
in a  state  statute  of  limitation,6  has  been  adopted  in  two  states.  In 
Washington,  however,  the  court  regards  a  mining  claim  as  the  equi- 
table estate  of  the  locator,  rather  than  as  personalty;7  while  in 
Oregon  a  statute  now  makes  all  conveyances  of  mining  claims  sub- 
ject to  the  same  rules  as  apply  to  "other  realty."  8  The  facts  that  the 
Idaho  case  related  only  to  transfers  prior  to  the  act  of  1866  supported 
by  mining  customs,  that  California  passed  an  act  as  early  as  1860  which 
the  courts  construed  to  require  the  conveyances  of  mining  claims  to 
be  in  writing,  that  the  California  courts  have  ever  since  called  a  min- 
ing claim  real  estate,9  and  that  in  1862  Nevada  passed  an  act  requiring 
the  same  formalities  for  the  conveyance  of  mining  claims  as  of  other 
real  estate,10  far  outweigh  the  earlier  erroneous  California  and  Ne- 
vada cases. 

It  would  seem  to  be  clear  that  an  unpatented  mining  claim  is  realty, 
and  as  such  within  the  state  statutory  requirements  applicable  to  real 
property.11  While,  under  the  old  rule  allowing  oral  transfers,  a  writ- 
ten transfer  did  not  have  to  be  under  seal,*  a  seal  would  now  seem  to 
be  necessary,  wherever  it  is  necessary  to  the  conveyance  of  ordinary 
real  estate. 

Transfers  of  Unpcrfected  Claims. 

But,  while  the  above  is  true  of  an  actually  perfected  mining  loca- 
tion, it  seems  still  to  be  true  that  an  unperfected  location  may  be 

ford  v.  Morrison  (Ariz.)  86  Pac.  6.  Compare  Waller  v.  Hughes,  2  Ariz.  114, 
11  Pac.  122. 

5  DUFFY  v.  MIX,  24  Or.  265,  33  Pac.  807. 

e  HERRON  v.  EAGLE  MIN.  CO.,  37  Or.  155,  61  Pac.  417. 

7  Phoenix  Min.  &  Mill.  Co.  v.  Scott,  20  Wash.  48,  54  Pac.  777. 

s  B.  &  C.  Conip.  Or.  §  3981.  See,  also,  Lohmann  v.  Helmer  (C.  C.)  104  Fed. 
178. 

9  GOLLER  v.  FETT,  30  Cal.  481 ;    King  v.  Randlett,  33  Cal.  318 ;    Melton  v. 
Lambard,  51  Cal.  258;    GARTHE  v.  HART,  73  Cal.  541,  15  Pac.  93;    Moore 
v.  Hamerstag,  109  Cal.  122,  41  Pac.  805 ;   Bakersfield  &  Fresno  Oil  Co.  v.  Kern 
County,  144  Cal.  148,  77  Pac.  892. 

10  Gen.  St.  Nev.  1885,  §  2650.     See  Hale  &  Norcross  Gold  &  Silver  Min.  Co. 
v.  Storey  County,  1  Nev.  104,  108. 

11  ROSEVILLE  ALTA  MIN.  CO.  v.  IOWA  GULCH  MIN.  CO.,  15  Colo.  29, 
24  Pac.  920,  22  Am.  St.  Rep.  373;    Alaska  Exploration  Co.  v.  Northern  Min. 
&  Trading  Co.,  152  Fed.  145,  81  C.  C.  A.  363;    REAGAN  v.  McKIBBEN,  11 
S.  D.  270,  76  N.  W.  943 ;   Harris  v.  Equator  Min.  &  S.  Co.  (C.  C.)  8  Fed.  863 ; 
Hopkins  v.  Noyes,  4  Mont.  550,  2  Pac.  280 ;  Cascaden  v.  Dunbar,  2  Alaska,  408. 
See  Butte  Hardware  Co.  v.  Frank,  25  Mont.  344,  65  Pac.  1 ;  Bradford  v.  Mor- 
rison (Ariz.)  86  Pac.  6.    A  mining  claim  descends  as  realty  to  the  heirs  of  the 
Intestate  owner.     LOHMANN  v.  HELMER  (C.  C.)  104  Fed.  178;  KEELER  v. 
TRUEMAN,  15  Colo.  143,  25  Pac.  311.     See,  also,  chapter  XX,  note  17,  supra. 

*  Jackson  v.  Feather  River  &  Gibsonville  Water  Co.,  14  Cal.  18 ;  Draper  v. 
Douglass,  23  Cal.  347;  St.  John  v.  Kidd.  26  Cal.  265. 


§  138)  QUITCLAIM   AND   WARRANTY   DEEDS.  409 

transferred  without  writing,  and  the  transferee  will  acquire  the  legal 
title  if  he  perfects  the  location  in  his  own  name.12  That  is  because, 
until  the  location  is  perfected,  it  has  not  acquired  the  status  of  real 
property,  and  in  consequence  is  not  governed  by  the  statutes  affecting 
real  property. 

It  being  settled  that  a  perfected  mining  location  must  be  conveyed  in 
writing,  and,  of  course,  that  a  patented  claim  must  be  so  conveyed,  a 
question  arises  as  to  the  form  of  deed. 


QUITCLAIM  AND  WARRANTY  DEEDS. 

138.    A  grantor  of  an  nnpatented  claim  should  convey  by  a  quitclaim 
deed  or  by  a  carefully  worded  special  warranty  deed. 

The  question  is  whether  a  quitclaim  deed  or  a  warranty  should  be 
used  in  conveying  a  mining  claim.  In  the  case  of  a  patented  claim 
a  warranty  deed  may  be  used,  whenever  it  would  be  used  in  regard  to 
other  real  property,  if  only  care  be  taken  to  have  the  warranty  except 
anything  excepted  by  the  patent  itself;  but  in  the  case  of  an  unpat- 
ented  claim  a  warranty  deed  should  never  be  given,  without  expressly 
stating  in  the  deed  that  the  warranty  does  not  apply  to  the  United 
States.  In  the  case  of  an  unpatented  claim  a  grantor  should  insist 
upon  giving  either  a  quitclaim  deed  or  a  carefully  worded  special  war- 
ranty deed. 

It  often  happens  that  so-called  warranty  deeds  are  really  quitclaims, 
because  the  granting  clause  conveys  only  the  right,  title,  and  interest 
of  the  grantor,  and  the  passage  of  that  is  all  that  is  warranted ; 13  and 
it  also  often  happens  that  a  so-called  quitclaim  deed  will  have  in  it 
a  covenant  of  warranty.14  The  choice  between  mere  quitclaims  and 
various  kinds  of  warranty  deeds  will,  of  course,  depend  wholly  upon  the 
purposes  which  the  parties  have  in  view.15 

12  MILLER  v.  CHRISMAN,  140  Cal.  440,  73  Pac.  1083,  74  Pac.  444,  98  Am. 
St.  Rep.  63 ;  Doe  v.  Waterloo  Min.  Co.,  70  Fed.  455,  17  O.  C.  A.  190.  See  Weed 
v.  Snook,  144  Cal.  439,  77  Pac.  1023.  Compare  Bay  v.  Oklahoma  Southern  Gas, 
Oil  &  Min.  Co.,  13  Okl.  425,  73  Pac.  936. 

is  Sweet  v.  Brown,  12  Mete.  (Mass.)  175,  45  Am.  Dec.  243.  But  see  Loomls 
v.  Bedel,  11  N.  H.  74. 

i*  A  common  form  of  mining  deed  in  use  in  Colorado  purports  to  quitclaim, 
but  contains  a  covenant  of  further  assurance.  Such  a  deed  is  not  invalid  to 
pass  present  title  because  of  such  covenant,  WHOLEY  v.  CAVANAUGH,  88 
Cal.  132,  25  Pac.  1112 ;  while  an  after-acquired  title  will  pass  under  it,  Id. ; 
Norfleet  v.  Russell,  64  Mo.  176;  Phelps  v.  Kellogg,  15  111.  131;  Bennett  v. 
Waller,  23  111.  97. 

is  That  the  grantee  in  a  quitclaim  deed  of  mining  property  will  take  title 
as  free  from  equities  as  if  the  deed  contained  full  covenants  of  warranty  was 


500  CONVEYANCES   AND   LIENS.  (Ch.  26 


SAME— THE  SPECIAL  "DIPS,  SPURS,"  ETC.,  CLAUSE. 

138a.  While  the  clause  in  mining  deeds,  conveying  all  veins,  with 
their  dips,  spurs,  angles,  and  variations,  is  on  principle  super- 
fluous, its  retention  is  recommended. 

It  is  customary  to  insert  in  mining  deeds,  following  the  description 
of  the  claim,  a  clause  conveying  all  lodes  and  veins,  with  their  dips, 
spurs,  angles,  and  variations.  The  purpose  of  this  is  to  grant  the 
small  veins,  which  are  offshoots  or  feeders  of  the  larger  veins,  and 
are  known  as  spurs,16  as  well  as  to  grant  the  larger  veins  themselves, 
and  to  convey  all  extralateral  rights  on  the  various  veins,  whatever 
may  be  the  irregularity  of  the  construction  and  strike  of  such  veins. 
That  the  conveyance  of  the  land  by  an  ordinary  real  estate  deed 
not  containing  such  a  clause  conveys  the  tops  of  the  veins  within  the 
common-law  boundaries;  and  that  the  ownership  of  the  tops  of  the 
veins  carries  with  it,  of  necessity,  the  extralateral  rights  which  the 
grantor  had,  would  seem  to  be  clear.17  As  a  matter  of  fact,  the 
custom  of  inserting  in  a  mining  deed  such  a  clause  as  the  one  under 
consideration  is  an  inheritance  from  conditions  prevailing  under  the 
act  of  1866  and  prior  thereto,  when  the  vein  was  the  principal  thing 
in  a  location  and  the  surface  a  mere  incident.  It  has  no  application 
under  the  present  statutes,  where  the  claim  consists  of  a  piece  of  real 
estate  embracing  lodes  or  veins.  Such  a  clause  is  deemed  by  all  mining 
law  writers  to  be  superfluous;  but  out  of  abundant  caution,  and  be- 
cause some  lawyers  reason  that  the  long  continuance  of  the  custom 
proves  its  necessity,  and  on  that  account  may  question  a  deed  which 
does  not  contain  such  a  clause,  its  insertion  in  a  deed  of  mining  prop- 
erty is  recommended.18 

held  in  BRADBURY  v.  DAVIS,  5  Colo.  265.  That  case  ought  to  be  followed 
as  to  unpatented  mining  claims,  even  in  a  jurisdiction  where  as  to  ordinary 
real  property  and  as  to  patented  mining  claims  the  taking  of  a  quitclaim  deed 
is  deemed  evidence  that  the  grantee  knows  that  something  is  wrong  with  the 
title.  A  contract  to  convey  a  mining  claim  "by  good  and  sufficient  deed  in 
fee  simple"  was  held  fulfilled,  where  the  grantee  knew  that  the  claim  was  un- 
patented, by  the  conveyance  of  full  title  to  the  unpatented  claim,  in  Bash  v. 
Cascade  Min.  Co.,  29  Wash.  50,  69  Pac.  402,  70  Pac.  487. 

is  The  law  fixes  no  limit  to  the  size  or  prominence  of  a  mineral-bearing 
vein  before  a  mining  location  can  be  made  upon  it.  CARSON  CITY  GOLD  & 
SILVER  MIN.  CO.  v.  NORTH  STAR  MIN.  CO.  (C.  C.)  73  Fed.  597,  601. 

IT  "It  is  probably  not  necessary  to  specify  extralateral  rights  in  order  that 
a  conveyance  of  a  mining-  claim  be  operative  to  transfer  them,  and  yet  it  is 
not  strange  that  the  custom  grew  up  of  naming  them  for  the  sake  of  avoiding 
the  possibility  of  disputes."  MONTANA  MIN.  CO.  v.  ST.  LOUIS  MIN.  & 
MILL.  CO.,  204  U.  S.  204,  27  Sup.  Ct.  254,  257,  51  L.  Ed.  444. 

is  in  MONTANA  MIN.  CO.  V.  ST.  LOUIS  MIN.  &  MILL.  CO.,  204  U.  S. 


§  133b)  QUITCLAIM   AND   WARRANT^/»^DS.  ^        501 


SAME— AFTER- AC  QUIRED  TITLE. 

138b.    The  courts  are  liberal  in  assisting  tHlfej^.  jjaawTtinder  mining 
deeds  by  estoppel. 

With  reference  to  mining  deeds  the  courts  have  adopted  a  very 
liberal  estoppel  doctrine.  Regardless  of  whether  a  deed  is  a  warranty 
deed,  or  only  a  quitclaim,  the  courts  endeavor  to  estop  the  grantor  as 
to  after-acquired  title,  and  to  make  the  deed  pass  all  that  the  state  of 
facts  at  the  time  of  the  conveyance  will  justify.  For  instance,  where 
the  grantor  has  made  first  a  location  and  then  a  relocation  of  the  same 
ground,  a  conveyance  will  pass  his  rights  under  both  locations,19  al- 
though a  different  name  is  used  for  each,  and  the  conveyance  gives 
only  «jnc  ^rtv3.20  Where  the  owners  of  a  mining  claim  changed  its 
stakes  after  record,  so  as  to  make  the  claim  conflict  with  an  adjoining 
claim,  and  then,  without  amending  the  record,  but  by  deed  (which 
seemingly  referred  to  patent  proceedings  started  for  the  reformed 
claim),  conveyed  the  claim  by  reference  to  the  record,  it  was  held  that, 
when  the  grantors  afterwards  acquired  title  to  the  adjoining  claim,  the 
title  to  the  conflict  area  passed  to  the  grantees  by  estoppel.21  The 
courts  are  often  helped  by  state  statutes,  which  provide,  as  the  state 
statutes  in  the  case  just  cited  did,22  that  any  deed  which  purports  to 
pass  the  fee  will  carry  an  after-acquired  title.  Accordingly  such  a 
quitclaim  deed,  given  after  entry  in  patent  proceedings,  will  pass  the 
patented  title  to  the  grantee.23  But  the  after-acquired  title  will  not 

2<H,  27  Sup.  Ct.  254,  51  L.  Ed.  444,  the  words  "together  with  all  the  miner- 
als therein,"  when  added  to  the  "dips,  spurs,  and  angles"  clause,  were  held 
to  show  that  despite  the  latter  clause  the  grantee  was  to  have  only  cominon- 
law  rights  in  the  vein  embraced  in  the  conveyed  land.  That  case  shows  the 
danger  of  special  clauses. 

i»WEILL  v.  LUCERNE  M1N.  CO.,  11  Nev.  200;    COLLINS  v.  McKAY,  36 
Mont.  123,  92  Pac.  295. 

20  PHILLPOTTS  v.  BLASDEL,  8  Nev.  61;    LEBANON  MIN.  CO.  v.  CON- 
SOLIDATED REPUBLICAN  MIN.  CO.,  6  Colo.  371;    COLLINS  v.  McKAY, 
36  Mont.  123,  92  Pac.  295.     See  SHO SHONE  MIN.  CO.  v.  RUTTER,  87  Fed. 
801,  31  C.  C.  A.  223. 

21  SHREVE  v.  COPPER  BELL  MIN.  CO.,  11  Mont.  309,  28  Pac.  315.     As 
no  application  for  patent  could  be  pending  without  a  plat  and  description  be- 
ing given,  the  reference  to  the  patent  proceedings  would  seem  to  have  describ- 
ed the  conflict  area,  while  under  the  Montana  statutes  the  conveyance  was  one 
which  would  pass  an  after-acquired  title.    Id.,  11  Mont.  347,  28  Pac.  315.     See 
Bprnardy  v.  Colonial  &  U.  S.  Mortg.  Co.,  17  S.  D.  637,  98  N.  W.  1G6,  106  Am 
St.  Rep.  791. 

22  Shreve  v.  Copper  Bell  Min.  Co.,  11  Mont.  309,  347,  28  Pac.  315. 

2  *  Bradbury  v.  Davis,  5  Colo.  265;    Crane  v.  Salmon,  41  Cal.  63.     This  is 


502  CONVEYANCES   AND   LIENS.  (Ch.  26 

pass  by  estoppel  to  a  grantee  where  the  grantee  has  forfeited  the  un- 
patented  location  conveyed  and  the  grantor  has  purchased  it  from  a 
subsequent  relocator.24 

EASEMENTS   ON   SEVERANCE. 

139.  Upon  severance  of  surface  from  minerals  by  conveyance,  the 
proper  easements  of  access  and  support  arise,  unless  they  are 
expressly  contracted  away.  The  grantor's  right  to  the  sup- 
port of  the  surface  by  the  minerals  is  on  principle  retained, 
even  where  he  grants  all  the  minerals,  with  the  right  to  re- 
move them,  and  where  it  is  their  careful  removal  that  causes 
the  subsidence  of  the  surface;  but  the  authorities  on  the 
point  are  in  conflict. 

The  severance  which  exists  because  of  reservations  under  the  town- 
site  acts  has  already  been  considered,  but  the  severance  which  arises 
from  conveyance  must  be  noted.  While  it  is  not  common  in  the  pre- 
cious metal  mining  regions  to  separate  the  ownership  of  the  minerals 
in  place  from  the  ownership  of  the  surface  of  the  ground,  it  is  always 
possible,  and  in  coal  mining  regions  it  is  comparatively  common, 
to  have  su-ch  severance.25  Such  severance  exists  either  because  the 
owner  of  the  mining  claim  conveys  the  minerals  and  keeps  the  sur- 
face, or  because  he  conveys  the  surface  but  keeps  the  minerals.28 

in  accordance  with  the  rule  applicable  to  public  lands  generally.  See  16  Cyc. 
696,  and  cases  cited. 

24  McDERMOTT  MIN.  CO.  v.  McDERMOTT,  27  Mont.  143,  69  Pac.  715. 

25  Peterson  v.  Hall,  57  W.  Va.  535,  50  S.  E.  603;   Manning  v.  Frazier,  96  111. 
279;    Hartwell  v.  Camman,  10  N.  J.  Eq.  128,  64  Am.  Dec.  448;    Caldwell  v. 
Fulton,  31  Pa.  475,  72  Am.  Dec.  760.     The  city  of  Victor,  Colo.,  for  instance, 
is  situated  on  the  surface  of  patented  mining  claims,  and  all  deeds  of  city  lots 
except  minerals  and  reserve  mining  rights. 

26  WILLIAMS  v.  SOUTH  PENN  OIL  CO.,  52  W.  Va.  181,  43  S.  E.  214,  60 
L.  R.  A.  795 ;   Brand  v.  Consolidated  Coal  Co.,  219  111.  543,  76  N.  E.  849 ;    Mc- 
Oonnell  v.  Pierce,  210  111.  627,  71  N.  E.  622  ;  Interstate  Coal  &  Iron  Co.  v.  Clint- 
wood  Coal  &  Timber  Co.,  105  Va.  574,  54  S.  E.  593 ;    Marvin  v.  Brewster  Iron 
Min.  Co.,  55  N.  Y.  538,  14  Am.  Rep.  322 ;   Moore  v.  Griffin,  72  Kan.  164,  83  Pac. 
395;    Wallace  v.  Elm  Grove  Coal  Co.,  58  W.  Va.  449,  52  S.  E.  485;    Huss  v. 
Jacobs,  210  Pa.  145,  59  Ul.  991 :    Sinoot  v.  Consolidated  Coal  Co.,  114  111.  App. 
512 ;   Preston  v.  White   57  W.  Va.  278,  50  S.  E.  236.    See  GILL  v.  FLETCHER, 
74  Ohio,  295,  78  N.  E    t33,  113  Am.  St.  Rep.  962,  where  there  was  an  excep- 
tion of  one-half  of  the  Jiineral,  though  the  surface  and  the  rest  of  the  mineral, 
passed.     To  the  sarno  effect,  see  NEGAUNEE  IRON  CO.  v.  IRON  CLIFFS 
CO.,  134  Mich.  264,  96  N.  W.  468.     The  exception  in  a  deed  of  oil  from  a  well 
now  producing  oil  covers  oil  obtained  by  sinking  the  well  to  a  lower  sand 
rock  after  it  has  ceased  to  flow.     Ammons  v.  Toothman,  59  W.  Va.   1C.",  53 
S.  E.  13,  115  Am.   St.  Rep.  908.     See  Jones  v.  American  Ass'n,  27  Ky.  Law 
Rep.  804,  86  S.  W.  llll.     A  deed  excepting  granite  on  the  lot  has  been  held, 


§  139)  EASEMENTS   ON    SEVERANCE.  503 

Whatever  the  form  of  the  instrument  of  conveyance,  and  even 
though  the  parties  speak  of  it  in  its  terms  as  a  lease,27  if  its  fair 
construction  shows  that  the  title  to  the  minerals  in  place  is  to  pass 
upon  the  delivery  of  the  instrument,  while  the  surface  is  retained,  or 
vice  versa,  there  is  a  severance  for  the  length  of  time  of  the  granted 
estate,  and,  of  course,  for  all  time,  if  the  fee  is  granted,28  except  that 
the  fee  to  the  space  occupied  by  the  minerals  seems  to  terminate  when 
the  mine  is  exhausted.29 

however,  to  cover  only  exposed  granite.  Phillips  v.  Collinsville  Granite  Co., 
123  Ga.  830,  51  S.  E.  6G6.  But  in  that  case  exposed  granite  was  heM  to  cover 
granite  thereafter  exposed  by  the  washing  away  of  the  soil.  Id.  See  Brady 
v.  Smith,  181  N.  Y.  178,  73  N.  E.  963,  106  Am.  St.  Rep.  531.  On  the  distinc- 
tion between  a  reservation  and  an  exception  and  on  the  effect  of  an  exception 
upon  a  remote  grantee  of  the  grantee,  see  Moore  v.  Griffin.  72  Kan.  164,  83 
Pac.  395,  4  L.  R.  A.  (N.  S.)  477.  See,  also,  Marvin  v.  Brewster  Iron  Min.  Co., 
r>o  N.  Y.  538,  14  Am.  Rep.  322. 

27  PLUMMER  v.  HILLSIDE  COAL  &  IRON  CO.,  104  Fed.  208,  43  C.  C.  A. 
490.  See  Denniston  v.  Haddock,  200  Pa.  426,  50  Atl.  197. 

ss  McCONNELL  v.  PIERCE,  210  111.  627,  71  N.  E.  622;  Kinsley  v.  Iron  Co., 
144  Pa.  613,  23  Atl.  250 ;  Plummer  v.  Iron  Co.,  160  Pa.  483.  28  Atl.  853 :  GAL- 
LAGHER v.  HICKS,  216  Pa.  243,  65  Atl.  623 ;  Barrett  v.  Kansas  &  Texas  Coal 
Co.,  70  Kan.  649,  79  Pac.  150.  See  City  of  New  Haven  v.  Hotchkiss,  77  Conn. 
168,  58  Atl.  753,  where  a  reservation  of  a  right  to  mine  was  held  to  create  an 
estate  of  inheritance.  Compare  Ames  v.  Ames,  160  111.  599,  43  N.  E.  592. 
"Coal  and  minerals  in  place  are  land.  It  is  no  longer  to  be  doubted  that  they 
are  subject  to  conveyance  as  such.  Nothing  is  more  common  in  Pennsylvania 
than  that  the  surface  right  should  be  in  one  and  the  mineral  right  in  another. 
It  is  not  denied,  in  such  a  case,  that  both  are  landowners,  both  holders  of  a 
corporeal  hereditament.  Our  English  ancestors,  indeed,  found  difficulty  in 
conceiving  of  a  corporeal  interest  in  an  unopened  mine — separate  from  the 
ownership  of  the  surface — because  livery  of  seisin  wns  in  their  minds  insepa- 
rable from  a  conveyance  of  land,  and  livery  could  not  be  made  of  an  unopened 
mine.  The  consequence  was  that  they  were  disposed  to  regard  such  rights  as 
incorporeal,  though  they  are  not  rights  issuing  out  of  land,  but  the  substance. 
With  us,  unfettered  as  we  are  by  the  necessity  of  livery  of  seisin,  and  abound- 
ing in  mineral  districts.  I  am  not  aware  that  it  has  been  seriously  doubted 
that  the  ownership  of  a  coal  bed  or  seam  is  a  corporeal  interest  in  land."  CALD- 
WELL  v.  FULTON,  31  Pa.  475,  483,  72  Am.  Dec.  760.  Accordingly,  if  the  own- 
er of  the  surface  takes  out  the  minerals,  the  owners  of  the  minerals  may  main- 
tain trespass.  Ashman  v.  Wigton  (Pa.)  12  Atl.  74.  Compare  Yellow  Poplar 
Lumber  Co.  v.  Thompson's  Heirs  (Va.)  62  S.  E.  358.  The  two  are  neither  ten- 
ants in  common  nor  joint  tenants,  but  are  owners  in  severalty  of  distinct  es- 
tates in  different  subjects.  INTERSTATE  COAL  &  IRON  CO.  v.  CLINT- 
WOOD  COAL  &  TIMBER  CO.,  105  Va.  574.  54  S.  E.  593.  And  each  subject 
is  capable  of  sale  or  incumbrance.  HOSACK  v.  GRILL,  204  Pa.  97.  53  Atl. 
640.  And  the  owner  of  one  can  safely  buy  the  estate  of  the  other  at  tax  sale. 
Hutch inson  v.  Kline,  199  Pa.  564,  49  Atl.  312.  The  purchase  of  an  outstnnd- 
injr  titlf  bv  one  does  not  inure  to  the  other's  benefit.  Virginia  Coal  &  Iron 
Co.  v.  Kelly.  93  Va.  3.°,2.  24  S.  E.  1020. 

29  MOORE  v.  INDIAN  CAMP  COAL  CO.,  75  Ohio  St.  493,  80  N.  E.  6.    Until 


504  CONVEYANCES   AND   LIENS.  (Ch.  26 

Where  a  severance  has  taken  place,  two  questions  may  arise,  name- 
ly :  Has  the  owner  of  the  minerals  any  rights  on  the  surface  ?  and  has 
the  owner  of  the  surface  a  complete  right  to  its  support?  80 

Relative  Rights  of  Surface  Owner  and  of  Subjacent  Mineral  Owner. 
It  seems  clear  that  arising  out  of  the  grant  the  mineral  owner  has 
an  easement  of  access  through  the  surface,31  and  a  right  to  work  the 
mine  by  occupying  as  much  of  the  surface  as  is  reasonably  necessary 
for  the  purpose.32  Moreover,  it  seems  that  where  the  owner  of  land 
conveys  the  coal  under  the  surface,  retaining  for  himself  the  surface, 
he  retains  title  to  everything  beneath  the  coal,  and  has  the  right  of  ac- 
cess to  it,  although  the  deed  does  not  expressly  so  provide.33  It  is 
also  well  settled  that,  unless  the  surface  owner  has  by  deed  or  other- 
wise estopped  himself  from  claiming  the  right,  he  has  a  clear  right 
to  the  support  of  the  surface  by  the  vertically  underlying  minerals  and 
other  constituent  parts  of  the  land.34  The  right  to  vertical  or  subja- 

such  exhaustion  the  unrestricted  owner  of  the  minerals  may  use  the  space  left 
by  proper  mining  for  such  purposes  as  he  may  see  fit,  which  do  no  injury  to  the 
surface.  Id. 

so  "The  word  'surface,'  as  used  in  the  books,  means  not  merely  the  geomet- 
rical superficies,  without  thickness,  but  includes  whatever  earth,  soil,  or  land 
lies  above  and  superincumbent  on  the  mine.  Surface,  therefore,  includes  the 
appellee's  mine,  which  lies  above  the  appellant's  mine  and  below  the  top  sur- 
face, which  still  may  remain  undisturbed  and  uninjured  in  the  original  gran- 
tor." Yandes  v.  Wright,  66  Ind.  319,  325,  32  Am.  Rep.  109.  "Surface,"  when 
conveyed,  means  that  portion  of  the  land  which  is  or  may  be  used  for  agri- 
cultural purposes.  Williams  v.  South  Penn  Oil  Co.,  52  W.  Va.  181,  43  S.  E. 
214,  60  L.  R.  A.  795. 

si  ROBERTSON  v.  YOUGHIOGHENY  RIVER  COAL  CO.,  172  Pa.  566,  33 
Atl.  706 ;  Baker  v.  Pittsburg,  C.  &.  W.  R.  Co.,  219  Pa.  398,  68  Atl.  1014. 

32  Wardell  v.  Watson,  93  Mo.  107,  5  S.  W.  605 ;  Williams  v.  Gibson,  84  Ala. 
228,  4  So.  350,  5  Am.  St.  Rep.  368. 

33  CHARTIERS  BLOCK  COAL  CO.  v.  MELLON,  152  Pa.  286,  25  Atl.  597, 
18  L.  R.  A.  702,  34  Am.  St.  Rep.  645 ;    Mansfield  Coal  &  Coke  Co.  v.  Mellon, 
152  Pa.  286,  25  Atl.  601.     But  see  Jefferson  Iron  Works  v.  Gill  Bros.,  9  Ohio 
Dec.  481.     In  CHARTIERS  BLOCK  COAL  CO.  v.  MELLON,  152  Pa.  286,  25 
Atl.  597,  18  L.  R.  A.  702,  34  Am.  St.  Rep.  645,  an  owner  of  land  had  granted 
away  the  coal  underlying  his  land,  with  full  right  of  removal,  but  later,  dis- 
covering that  gas  and  oil  underlay  the  coal,  gave  oil  and  gas  leases  under  which 
the  lessees  sought  to  drill  through  the  coal  beds  to  get  at  the  oil  and  gas.    The 
coal  company  sought  an  injunction,  but  was  refused  one  on  condition  that  the 
oil  and  gas  lessees  give  bond  to  indemnify  the  coal  company  from  any  dam- 
age which  might  be  caused  by  oil  and  gas  leaking  into  the  coal  mine  from  the 
wells  sunk.     While  the  decision  is  satisfactory,  the  reasoning  of  the  court  is 
not.     See  the  dissenting  opinion  of  Mr.  Justice  Williams. 

34  Weaver  v.  Coal  Co.,  216  Pa.  195,  65  Atl.  545;   YOUGHIOGHENY  RIVER 
COAL  CO.  v.  ALLEGHENY  NAT.  BANK,  211  Pa.  319,  60  Atl.  924,  69  L.  R.  A. 
637 ;  .NOONAN  v.  PARDEE,  200  Pa.  474,  50  Atl.  255,  55  L.  R.  A.  410.  86  Am. 
St.  Rep.  722;  Pringle  v.  Vesta  Coal  Co.,  172  Pa.  438,  33  Atl.  690;  ROBERT- 


£  ISO)  EASEMENTS   ON   SEVERANCE.  505 

cent  support  for  the  surface  in  its  natural  state  prima  facie  belongs  to 
every  surface  owner. 

While  the  common-law  right  of  subjacent  support  extends  only  to 
the  surface  in  its  natural  state,  it  is  violated,  even  though  buildings  or 
other  structures  are  erected  on  the  surface,  if  the  subsidence  would 
have  occurred  had  the  superstructures  not  been  there;  and  in  case 
of  such  violation  damages  for  the  injury  to  the  buildings,  as  well 
as  to  the  surface,  may  be  recovered.88  By  agreement,  also,  the  right 
of  vertical  or  subjacent  support  may  be  extended  to  superstructures  as 
well  as  to  the  surface,88  and  should  be  held  so  to  be  extended  where, 
to  accomplish  the  severance,  the  surface  is  platted  into  city  lots  and 
sold  as  such  by  the  one  who  reserves  the  minerals.  There  are  also  stat- 
utes in  several  states,  which  are  based  upon  the  so-called  police  powers 
of  the  different  states,  and  which  give  the  surface  owners  express 

SON  v.  YOUGHIOGHENY  RIVER  COAL  CO.,  172  Pa.  566,  33  Atl.  706 ;  Jones 
v.  Wagner,  66  Pa.  429,  5  Am.  Rep.  385 ;  Livingston  v.  Moingona  Coal  Co.,  49 
Iowa,  369,  31  Am.  Rep.  150 ;  Burgner  v.  Humphrey,  41  Ohio  St.  340 ;  Phillips 
v.  Collinsville  Granite  Co.,  123  Ga.  830,  51  S.  E.  666;  Western  Indiana  Coal 
Co.  v.  Brown,  36  Ind.  App.  44,  74  N.  E.  1027,  114  Am.  St.  Rep.  367;  Yandes 
v.  Wright,  66  Ind.  319,  32  Am.  Rep.  109 ;  Chicago  &  A.  R.  Co.  v.  Brandau,  81 
Mo.  App.  1;  Lloyd  v.  Catlin  Coal  Co.,  210  111.  460,  71  N.  E.  335;  Perry 
County  Coal  Min.  Co.  v.  Maclin,  70  111.  App.  444.  That  the  injury  happened 
in  spite  of  due  care  and  skill  in  working  is  no  defense.  NOONAN  v.  PAR- 
DEE,  supra ;  YANDES  v.  WRIGHT,  66  Ind.  319,  32  Am.  Rep.  109 ;  Carlin  v. 
Ohappel,  101  Pa.  348,  47  Am.  Rep.  722;  Collins  v.  Gleason  Coal  Co.  (Iowa) 
115  N.  W.  497.  For  cases  holding  a  lessor  liable  where  his  lessee  did  not 
leave  sufficient  support  for  the  surface,  see  Kistler  v.  Thompson,  158  Pa.  139, 
27  Atl.  874;  Campbell  v.  Louisville  Coal  Min.  Co.,  39  Colo.  379,  89  Pac.  767, 
10  L.  R.  A.  (N.  S.)  822.  For  a  case  where  the  lessor  was  not  liable,  see  Hill 
r.  Pardee,  143  Pa.  98,  22  Atl.  815. 

35  WILMS  v.  JESS,  94  111.  464,  34  Am.  Rep.  242;    NOONAN  v.  PARDEE, 
200  Pa.  474,  50  Atl.  255,  55  L.  R.  A.  410,  86  Am.  St.  Rep.  722;    Gumbert  v. 
Kilgore  (Pa.)  6  Atl.  771 ;   Chicago  &  A.  R.  Co.  v.  Brandau,  81  Mo.  App.  1.     See 
Matulys  v.  Philadelphia  &  Reading  Coal  &  Iron  Co.,  201  Pa.  70,  50  Atl.  823. 
Compare  Campbell  v.  Louisville  Coal  Min.  Co.,  39  Colo.  379,  89  Pac.  767,  10 
L.  R.  A.  (N.   S.)  822.     See,  as  to  springs  in  the  land,  Weaver  v.  Berwind- 
White  Coal  Co.,  216  Pa.  195,  65  Atl.  545.     NOONAN  v.  PARDEE,  supra,  gives 
the  surface  owner  a  right  of  access  to  the  mine  below  the  surface  to  see  that 
his  right  of  surface  support  is  being  maintained.     And  it  has  further  been 
held   in   Pennsylvania  that  the  cause  of  action  for  injury  to   the   surface 
arises  where  the  support  of  the  surface  is  so  weakened  that  the  surface 
might  fall.     TISCHLER  v.  PENNSYLVANIA  COAL  CO.,  218  Pa.  82,  66  Atl. 
988;    NOONAN  v.  PARDEE,  supra.     But  an  injunction  will  not  lie  against 
removal  of  the  minerals  where  an  action  at  law  for  damages  is  an  adequate 
remedy.     Berkey  v.  Berwind-White  Coal  Min.  Co.,  220  Pa.  65.  69  Atl.  329. 
It  has  been  held,  also,  that  the  surface  owners  do  not  have  to  show  affirm- 
atively that  the  subsidence  did  not  occur  by  reason  of  his  buildings.     West- 
ern Indiana  Conl  Co.  v.  Brown.  36  Ind.  App.  44,  74  N.  E.  1027,  114  Am.  St. 
Rep.  367;    WILMS  v.  JESS,  supra. 

36  BURGNER  v.  HUMPHREY,  41  Ohio  St.  340. 


506  CONVEYANCES   AND   LIENS.  (Ch.  2< 

rights,  which,  if  valid,  necessarily  imply  a  right  of  superstructure  ai 
well  as  surface  support.37 

But  the  right  of  surface  support  by  subjacent  land,  a  right  whicl 
prima  facie  belongs  to  the  surface  owner  as  such,  but  which  may  b< 
reserved  to  him  or  increased  by  express  stipulation,  may  be  los 
to  him  by  express  agreement.38  It  should  be  remembered,  however 
that  "the  mere  fact  of  giving  a  right  to  sink  pits  and  to  work  or  ge 
coal  (or  other  minerals)  does  not  of  itself  establish  a  right  to  get  ri< 
of  that  which  is  the  common-law  right  of  the  surface  owner  to  hav 
his  surface  undisturbed,"  even  though  a  covenant  is  taken  from  th 
grantee  of  the  minerals  that  he  will  pay  compensation  for  damage 
to  the  surface.39 

But  the  right  given  may  be  so  extensive  as  to  carry  with  it  a  righ 
to  let  down  the  surface,  and  the  courts  are  divided  over  the  questioi 
whether  it  is  so  extensive  where  the  right  given  is  to  mine  and  re 
move  "all  the  coal."  It  would  seem  as  if  the  grantee  of  coal  or  o 
precious  metal  minerals  should  not  have  the  right  to  deprive  the  sur 
face  of  support,  unless  the  right  to  let  down  the  surface  is  grants 
in  express  terms  or  by  unavoidable  implication,  which  does  not  exis 
where  "all  the  coal"  or  "all  the  mineral"  is  granted ;  and  that  is  th 
majority  view.40  But  the  view  that  the  right  to  take  "all  the  coal 


37  In  Colorado,  for  instance,  the  statute  provides  that  no  person  shall  hav 
the  right  to  mine  under  any  building  or  improvement  unless  he  shall  first  s( 
cure  the  parties  owning  the  same  from  all  damages  except  by  priority  c 
right  (Mills'  Ann.  St.  Colo.  §•§  3139,  3620) ;   and  there  is  a  provision  for  injun< 
tion  (Id.  §  3159).     See,  also,  Civ.  Code  Idaho  1901,  §  2571 ;  Rev.  St.  Wyo.  1891 
§  2537 ;  Rev.  Codes  N.  D.  1899,  §  1436 ;  Ann.  St.  S.  D.  1899,  §  2666.     In  Col< 
rado,  though  the  bond  is  not  exacted,  the  surface  owner  may  still  recove 
damages  occasioned  by  the  negligent  removal  of  support.     Campbell  v.  Louis 
ville  Coal  Min.  Co.,  39  Colo.  379,  89  Pac.  767,  10  L.  R.  A.  (N.  S.)  822. 

38  Compare  SORANTON  v.  PHILLIPS,  94  Pa.  15,  where  one  who  grante 
the  surface  expressly  reserved  the  right  to  cause  it  to  subside,  if  that  shoul 
prove  necessary  in  getting  out  all  the  coal.     See,  also,   Madden  v.   Lehig 
Valley  Coal  Co.,  212  Pa.  63,  61  Atl.  559. 

39  New  Sharlston  Collieries  Co.  v.  Earl  of  Westmoreland,  82  Law  T.  (N.  S 
725,  726.    So  in  the  converse  case  of  reservation  of  minerals.   Williams  v.  Ha; 
120  Pa.  485,  14  Atl.  379,  6  Am.  St.  Rep.  719 ;  Fairview  Coal  Co.  v.  Hay  (Pa.)  ] 
Atl.  383. 

40  ROBERTSON  v.  YOUGHIOGHENY  RIVER  COAL  CO.,  172  Pa.  566,  ?. 
Atl.   706;    Weaver  v.   Berwind-White   Coal   Co.,   216   Pa.   195,   65   Atl.    545 
WILMS  v.  JESS,  94  111.  464,  34  Am.  Rep.  242 ;  Mickle  v.  Douglas,  75  Iowa.  7! 
39  N.  W.  198 ;   BURGNER  v.  HUMPHREY,  41  Ohio  St.  340 ;    Horner  v.  Wa 
son,  79  Pa.  242,  21  Am.  Rep.  55;    Coleinan  v.  Chadwick,  80  Pa.  81,  21  An 
Rep.  93 ;    Erickson  v.  Michigan  Land  &  Iron  Co.,  50  Mich.  604,  16  N.  W.  16 
See  Williams  v.  Gibson,  84  Ala.  228,  4  So.  350,  5  Am.  St.  Rep.  368;    Yandc 
v.  Wright,  66  Ind.  319,  32  Am.  Rep.  109. 


5  139)  EASEMENTS   ON   SEVERANCE.  507 

neans  the  right  to  take  it  even  though  the  surface  subsides,  unless 
:he  right  of  surface  support  is  expressly  reserved,  has  its  advocates.41 
Fhe  cases  which  deny  to  the  grantor  of  the  surface,  who  excepts  the 
ninerals,  or  "all"  the  minerals,  and  reserves  mining  privileges,  the 
right  to  let  down  the  surface  granted,42  are,  of  course,  in  support 
Df  the  majority  view.43 

Because  by  the  better  view  the  owner  who  grants  the  minerals  and 
<:eeps  the  surface  retains  the  right  of  support  despite  the  fact  that  his 
^rant  is  of  all  the  minerals,  it  seems  equally  the  better  view  that  the 
grantee  of  the  surface  has  the  right  of  subjacent  support  by  the  grant- 
or who  excepts  all  the  minerals  and  reserves  mining  rights.44  More- 
over, as  the  surface  owner's  right  of  subjacent  support  is  absolute, 
it  would  seem  as  if  the  subjacent  owner  has  as  absolute  a  right  that 
:he  surface  owner  shall  not  cause  his  surface  to  drop  down  on  the 
subjacent  mine,  or  let  water  down  into  it,  as  a  result  of  surface  ex- 
cavation.45 

With  reference  to  the  right  of  subjacent  support  the  weight  of 
authority  is  that  the  right  is  not  infringed  until  there  is  a  subsidence, 

41  GRIFFIN  v.  FAIRMONT  COAL  CO.,  59  W.  Va.  480,  53  S.  E.  24,  2  L. 
R.  A.  (N.  S.)  1115,  where  both  sides  of  the  question  are  vigorously  presented. 

42  COLLINS  v.  GLEASON  COAL  CO.  (Iowa)  115  N.  W.  497;    Lord  v.  Car- 
bon Iron  Mfg.  Co.,  42  N.  J.  Eq.  157,  6  Atl.  812 ;    Carlin  v.  Chappel,  101  Pa. 
348,  47  Am.  Rep.  722 ;    Erickson  v.  Michigan  Land  &  Iron  Co.,  50  Mich.  604, 
16  N.  W.  161.     See  Marvin  v.  Brewster  Iron  Min.  Co.,  55  N.  Y.  538,  14  Am. 
Rep.  322. 

43  An   interesting  side  light   is   thrown  on   the  question  by  the  decisions 
dealing  with  ways  of  necessity.     Where  a  grantor  conveys  away  all  his  land 
except  a  piece  from  which  he  has  no  way  out  except  over  the  granted  land,  the 
law  implied  a  grant  back  to  him  from  his  grantee  of  a  way  of  necessity,  even 
though  the  grantor  gives  a  deed  containing  general  covenants  of  warranty. 
Brigham  v.  Smith,  4  Gray  (Mass.)  297,  64  Am.  Dec.  76 ;    New  York  &  N.  E.  R. 
Co.  v.  Commissioners,  162  Mass.  81,  38  N.  E.  27;  Whitehouse  v.  Cummings, 
83  Me.  91,  21  Atl.  743,  23  Am.  St.  Rep.  756.     This  doctrine  is  a  recognized 
exception  to  the  general  rule  that  in  construing  deeds  the  intention  of  the 
parties  as  manifested  by  the  language  used  in  the  deed  itself  should  govern, 
and  the  exception  exists  because  public  policy  demands  such  an  implied  re- 
grant,  despite  the  general  words  of  warranty  in  the  deed.     Buss  v.  Dyer,  125 
Mass.  287,  291.     Public  policy  would  seem  to  call  just  as  strongly  for  the  im- 
plied right  of  subjacent  support,  and  even  though  the  deed  purports  to  convey 
all  the  coal,  with  the  right  to  remove  all  of  it,  the  implication  of  the  right 
of  subjacent  support  is  not  as  inconsistent  with  the  express  grant  as  is  the  im- 
plication of  a  way  of  necessity  for  the  grantor  in  the  face  of  the  latter's  gen- 
eral covenants  of  warranty. 

44  LORD  v.  CARBON  IRON  MFG.  CO.,  42  N.  J.  Eq.  157,  6  Atl.  812.     The 
grantor  may  expressly  reserve  the  right  to  let  down  the  surface,  however. 
Scranton  v.  Phillips,  94  Pa.  15. 

45  See  Bagnall  v.  L.  &  N.  W.  Ry.  Co.,  7  Hurl.  &  N.  423,  11  Hurl.  &  C.  544. 


508  CONVEYANCES   AND   LIENS.  (Cll.  26 

and  that  each  subsidence  gives  a  new  cause  of  action.46  The  ques- 
tion is  important  in  the  law  of  damages  and  with  reference  to  the 
statute  of  limitations.47 

The  Right  of  Lateral  Support. 

The  right  of  lateral  support  is  not  lost  by  the  severance  of  title 
to  the  minerals  from  title  to  the  surface.  The  surface  owner  still 
has  the  right,  unless  he  has  contracted  it  away.  Even  where  the 
grantor  of  the  surface,  in  excepting  minerals  and  reserving  min- 
ing rights,  expressly  stipulates  that  he  shall  not  be  liable  for  any 
damage  occasioned  thereby,  such  stipulation  applies  only  to  opera- 
tions under  the  surface  conveyed,  and  does  not  relieve  the  grantor 
from  liability  for  taking  away  the  lateral  support  from  the  surface 
by  operations  on  other  land.48  Where  gold  placer  claims  worked 
by  hydraulic  process  adjoin,  it  has  been  held  that  neither  has  a  right 
of  lateral  support  as  against  the  other.49 

But  with  reference  to  a  breach  of  the  right  of  lateral  support 
where  there  are  buildings,  and  yet  the  ground  would  have  fallen  if 
there  had  been  none,  it  seems  that,  while  the  injury  to  the  surface 
can  be  recovered  for  despite  due  care  on  the  part  of  the  defendant, 
any  injury  to  plaintiff's  buildings  can  be  compensated  only  on  proof 
of  defendant's  negligence.50 

**  Darley  Main  Colliery  Co.  v.  Mitchell,  11  App.  Cas.  127;  Crumbo  v.  Wall- 
send  Local  Board  [1891]  1  Q.  B.  503;  Smith  v.  Seattle,  18  Wash.  484,  51  Pac. 
1057,  63  Am.  St.  Rep.  910 ;  Bank  of  Hartford  County  v.  Waterman,  26  Conn. 
324 ;  Church  of  Holy  Communion  v.  Paterson  Extension  R.  Co.,  66  N.  J.  Law, 
218,  49  Atl.  1030.  55  L.  R.  A.  81.  The  cases  of  NOONAN  v.  PARDEE,  200 
Pa.  482,  50  Atl.  255,  55  L.  R.  A.  410,  86  Am.  St.  Rep.  722,  and  Chicago  &  A. 
R.  Co.  v.  Brandau,  81  Mo.  App.  1,  are  contra.  In  the  latter  case  the  doctrine 
is  adopted  that,  where  damages  for  subsidence  would  be  inadequate  to  com- 
pensate for  the  injury  done,  injunction  will  lie  against  the  removal  of  the 
mineral.  In  NOONAN  v.  PARDEE,  supra,  the  cause  of  action  for  the  subsid- 
ence is  held  to  arise  when  the  coal  is  removed  without  leaving  proper  sup- 
port, and  the  statute  of  limitations  is  held  to  begin  to  run  then.  See  TISCH- 
LER  v.  PENNSYLVANIA  COAL  CO.,  218  Pa.  82,  66  Atl.  988,  to  the  same 
effect. 

47  The  owner  or  lessee  in  possession  at  the  time  of  subsidence  is  held  not 
to  be  liable  where  the  damage  was  caused  by  the  working  of  the  mine  by  a 
predecessor  in  title.     Hall  v.  Duke  of  Norfolk  [1900]  2  Oh.  493 ;    Greenwall  v. 
Low  Beechburn  Coal  Co.  [1897]  2  Q.  B.  165. 

48  MATULYS  v.  PHILADELPHIA  &  READING  COAL  &  IRON  CO.,  201 
Pa.  70,  50  Atl.  823. 

49  HENDRICKS  v.  SPRING  VALLEY  MIN.  &  IRR.  CO.,  58  Cal.  190,  41 
Am.  Rep.  257. 

so  MATULYS  v.  PHILADELPHIA  &  READING  COAL  &  IRON  CO.,  201 
Pa.  70,  50  Atl.  823,  where  the  court  concedes  that  in  cases  of  subjacent  sup- 
port the  damage  to  houses  may  be  recovered  for,  when  the  subsidence  would 


141)  OTHER   LIENS.  509 


MORTGAGES. 

140.  Mining  claims  may  be  mortgaged;  but,  if  they  are  nnpatented, 

the    mortgagee    should    secure   himself    against    a    default    in 
the  doing  of  the  annual  labor. 

It  is  possible  to  mortgage  an  unpatented  mining  claim;  but,  ow- 
ing to  the  need  of  the  assessment  work  being  done  to  keep  the  claim 
from  being  forfeited,  such  a  mortgage  is  a  precarious  security,  un- 
less the  mortgagee  himself  undertakes  the  doing  of  the  annual  labor. 
In  such  case  the  mortgage  should  be  so  drawn  that  the  necessary 
assessment  work  and  any  additional  development  work  may  be  paid 
out  of  the  rents,  issues,  and  profits  of  the  claim  before  the  mortgagee 
has  to  look  to  the  claim  itself.51  A  patented  mining  claim  may,  of 
course,  be  mortgaged  in  the  same  way  that  other  real  estate  may  be, 
and  a  continuance  of  mining  by  the  mortgagor,  if  carried  on  in  prop- 
er mining  fashion,  cannot  be  enjoined  as  waste.52 

OTHER    LIENS. 

141.  Except  in  a  few  jurisdictions,  the  same  liens  attach  to  mining 

claims  as  adhere  to  ordinary  real  estate. 

The  same  lie'ns  which  attach  to  ordinary  real  estate  adhere  in  gen- 
eral to  mining  claims.  The  only  states  making  exceptions  are  those 
where  an  unpatented  mining  claim  is  regarded  as  personalty.  The 
result  is  that  a  mining  claim  is  subject  to  a  judgment  lien,53  to  the 
lien  of  taxes  on  real  estate,54  and  usually  to  the  liens  provided  for 

have  taken  place  if  the  houses  had  not  been  there,  even  though  no  negligence 
is  shown.  Donk  Bros.  Coal  &  Coke  Co.  v.  Novero,  135  111.  App.  633,  despite  its 
syllabus,  is  a  case  of  subjacent,  and  not  of  lateral,  support.  For  the  different 
views  on  lateral  support,  see  1  Tiffany,  Real  Property,  668-670. 

51  Charter  Oak  Life  Ins.   Co.   v.   Stephens,  5  Utah,  319,   15  Pac.  253.    A 
mortgage  of  the  "Jim  Blaine  mining  claim"  was  held  to  pass  the  "Slap  Jack 
mine"  in  Wemple  v.  Yoseinite  Gold  Min.  Co.,  4  Cal.  App.  78,  87  Pac.  280. 

52  Capner  v.  Flemington  Min.  Co.,  3  N.  J.  Fxj.  467. 

ss  Butte  Hardware  Co.  v.  Frank,  25  Mont.  344,  65  Pac.  1 ;  Bradford  v.  Mor- 
rison (Ariz.)  86  Pac.  6.  But  see,  contra,  Phoenix  Min.  &  Mill.  Co.  v.  Scott,  20 
Wash.  48,  54  Pac.  777.  For  a  case  where  a  judgment  lien  reached  the  in- 
terest of  a  landowner  in  coal  in  place  leased  by  him  by  a  lease  sometimes 
called  a  sale,  see  Coolbaugh  v.  Lehigh  &  Wilkes-Barre  Coal  Co.,  213  Pa.  28, 
62  Atl.  94,  4  L.  R.  A.  (N.  S.)  207. 

54  Forbes  v.  Gracey,  94  TJ.  S.  762,  24  L.  Ed.  313.  Where  the  surface  is 
owned  by  one  and  the  minerals  by  another,  the  minerals  may  be  assessed  and 
taxed  separately  from  the  surface.  Stuart  v.  Commonwealth.  15  Ky.  Law 
IJop.  513,  23  S.  W.  307;  Consolidated  Coal  Co.  of  St.  Louis  v.  Baker,  135  111. 
545.  20  N.  E.  651,  12  L.  R.  A.  247.  Under  the  Colorado  statute  the  mineral 
survey  number  is  so  essential  a  part  of  the  tax  assessment  description  of  a 


310  CONVEYANCES   AND   LIENS.  (Ch.   2 

in  the  mechanic's  lien  laws.58  Moreover,  since  the  issuance  of  a 
patent  for  a  claim  does  not  terminate  the  liens  which  attached  to  the 
unpatented  claim,66  a  patent  inures  to  the  benefit  of  the  lien  holder.57 
We  have  already  considered  a  mining  partner's  lien.  In  considering 
what  is  a  lien  on  mining  claims  the  only  safe  test  is  to  ask  what  is 
a  lien  on  other  real  estate. 


EXAMINATIONS  OF  TITLE. 

142.  The  examination  of  the  title  of  a  mining  claim  requires  careful 
scrutiny  of  the  ground,  as  well  as  of  the  abstract,  and  even 
where  the  claim  is  patented  a  search  is  necessary  for  certain 
papers  antedating  patent. 

Patented  Claims. 

The  examination  of  the  title  of  a  patented  mining  claim  presents 
very  few  questions  not  applicable  to  ordinary  real  estate.  Nothing 
need  be  looked  for  in  the  record  prior  to  patent,  except  conveyances 
under  which  the  patented  title  may  pass  by  estoppel,  disclosures  as 
to  co-tenants  excluded  from  the  application  for  patent,  and  liens 
saved  by  the  terms  of  Rev.  St.  U.  S.  §  2332  (U.  S.  Comp.  St.  1901, 
p.  1433).  Outside  of  the  record,  however,  certain  investigations 
must  be  made  even  with  reference  to  patented  claims.  By  the  act 
of  April  28,  1904,58  it  is  provided  that  the  monuments  established 
on  the  ground  when  the  official  survey  is  made  shall  constitute  the 
highest  authority  as  to  what  land  is  patented,  and  erroneous  or  in- 
consistent descriptions  or  calls  in  the  patent  shall  give  way  thereto. 

claim  that  its  omission  invalidates  a  tax  sale.     Hammon  v.  Nix,  104  Fed.  689, 
44  C.  C.  A.  132. 

55  Where  several  locations  are  known  as  one  mine,  a  mechanic's  lien  against 
the  property  under  the  consolidated  name  will  be  enforced.    TREDINNICK 
v.  RED  OLOUD  CONSOLIDATED  MIN.  CO.,  72  Cal.  78,  13  Pac.  152;    Phil- 
lips v.   Salmon  River  Min.  &  Development  Co.,  9  Idaho,  149,  72  Pac.  886; 
Hamilton  v.  Delhi  Min.  Co.,  118  Cal.  148,  50  Pac.  378.     See  Salt  Lake  Hard- 
ware Co.  v.  Chainman  Mining  &  Electric  Co.   (C.  C.)   137  Fed.   632.     Under 
the  California  act  a  tract  of  land  in  process  of  development  as  "an  oil  mine" 
is  subject  to  the  act.     Berentz  v.  Belmont  Oil  Min.  Co.,  148  Cal.  577,  84  Pac. 
47,  113  Am.  St.  Rep.  308.     Whether  work  done  for  a  lessee  can  be  charged 
against  the  lessors'  interest  or  not  depends,  of  course,  on  the  state  statute 
and  the  nature  of  the  lease.     See  Higgins  v.  Mining  Co.,  148  Cal.  700,  84  Pao. 
758,  113  Am.  St.  Rep.  344;    Williams  v.  Eldora  Enterprise  Gold  Min.  Co.,  35 
Colo.  127,  83  Pac.  780 ;    Littler  v.  Robinson,  38  Ind.  App.  104,  77  N.  B.  1145 ; 
Cascaden  v.  Wimbish  (C.  C.  A.)  161  Fed.  241. 

56  Rev.  St.  U.  S.  §  2332  (U.  S.  Comp.  St.  1901,  p.  1433). 

57  Butte  Hardware  Co.  v.  Frank,  25  Mont.  344,  65  Pac.  1. 
ss  32  Stat.  545,  c.  1796  (U.  S.  Comp.  St.  Supp.  1907,  p.  477). 


§  142)  EXAMINATIONS   OF   TITLE.  511 

A  surface  examination,  therefore,  is  essential  to  make  certain  that 
the  monuments  on  the  ground  show  that  the  claims  correspond  to  the 
patent  description,  as  well  as  to  make  sure  that  nobody  is  in  posses- 
sion under  claim  of  hostile  title.59  Placer  claims  should  also  be  in- 
spected, to  see  whether  they  contain  "known  lodes."  Due  care  also 
suggests  that,  where  a  patent  is  unaccompanied  by  a  diagram  of  the 
ground  patented,  a  certified  copy  of  the  plat  of  the  claim  should  be 
obtained  from  the  surveyor  general,  to  be  used  in  verifying  the  patent 
descriptions  and  the  monuments  on  the  ground.60 

Unpatented  Claims. 

The  title  to  unpatented  claims  is  much  more  precarious  than  that 
to  patented.  The  record  title  begins,  of  course,  with  the  location 
certificate;  but,  because  the  location  itself  is  not  de  jure  until  dis- 
covery, a  subsequent  record  based  upon  a  proper  discovery  may  dis- 
close the  better  title.61  Moreover,  as  we  have  noticed,  the  mere  fact 
of  a  discovery  is  not  enough.  It  must  be  a  discovery  on  unoccupied 
and  unappropriated  land  of  the  United  States.  An  inspection  of  the 
premises  and  an  investigation  into  the  legality  of  the  discovery,  the 
proper  performance  of  the  various  acts  of  location,  and  the  doing 
of  the  annual  labor  are  indispensable.  In  the  case  of  unpatented  claims 
the  record  title  must  be  examined;  but  the  facts  investigated  out- 
side of  the  record  are  of  paramount  importance.  As  in  the  case  of 
other  real  estate,  a  purchaser  takes  subject  to  the  rights  of  those  open- 
ly in  possession,62  but  not  of  those  claiming  under  an  unrecorded 
secret  trust.63  A  survey  should  be  advised,  and  a  complete  investi- 
gation as  to  conflicting  mining  claims  and  the  ownership  of  conflict 
areas  instituted.  Because  of  the  holding  in  several  states  that  any 
part  of  an  unpatented  location  which  is  made  more  than  the  statutory 
distance  from  the  center  of  the  vein  by  the  devious  course  pursued 
by  the  vein  is  to  that  extent  void  for  excess,  the  client  should  also 
be  advised  to  make  as  careful  an  investigation  into  the  question  of 
the  strike  of  the  vein  as  is  possible. 

59  COFFEE  v.  EMIGH,  15  Colo.  184,  25  Pac.  83,  10  L.  R.  A.  125.  See 
WETZSTEIN  v.  LARGEY,  27  Mont.  212,  70  Pac.  717. 

eo  See  Combs  v.  Virginia  Iron,  Coal  &  Coke  Co.,  32  Ky.  Law  Rep.  601,  106 
S.  W.  815. 

ei  "Location  and  record  may  both  be  prior  to  those  of  a  cross  lode,  and  still 
the  latter  be  the  older  and  better  title,  by  reason  of  an  earlier  discovery,  per- 
fected within  the  statutory  time,  of  which  the  record  gives  no  information." 
Patterson  v.  Hitchcock,  3  Colo.  533,  538. 

62  Reedy  v.  Wesson,  1  Alaska,  570;  WETZSTEIN  v.  LARGEY,  27  Mont. 
212,  70  Pac.  717. 

«s  Reed  v.  Munn,  148  Fed.  737,  80  C.  C.  A.  215. 


512  MINING  REMEDIES.  (Ch.   27 

CHAPTER  XXVII. 

MINING  REMEDIES. 

143.  Ejectment  Actions  and  Suits  to  Quiet  Title. 

144.  Trespass. 

144a.          The  Measure  of  Damages. 

145.  Trover  and  Replevin. 

146.  Injunctions. 

147.  Accounting. 

148.  Inspection  and  Survey. 

149.  Receiverships. 

150.  Partition. 

151.  Condemnation  Proceedings — Eminent  Domain. 

152.  Personal  Injury  Actions. 

153.  Adverse    Possession — Statutes   of    Limitation. 

Any  book  on  mining  law  would  be  incomplete  without  some  refer- 
ence to  the  various  legal  remedies  available  in  mining  disputes. 

EJECTMENTS    AND    SUITS    TO    QUIET    TITLE. 

143.  Except  in  the  case  of  adverse  suits,  ejectments  and  suits  to, 
quiet  title  are  not  varied  by  the  fact  that  mining  claims  are 
the  subject  of  litigation. 

Ejectment  is  the  action  to  try  title  to  mining  claims,  except  in  those 
cases  where  the  plaintiff  is  in  possession.  In  the  latter  case  a  suit  to 
quiet  title  is  what  results.  In  either  legal  proceeding  the  fact  that  a 
mining  claim  is  being  litigated  about  necessitates  no  special  rules, 
except  where  it  is  brought  to  determine  adverse  claims  in  patent  pro- 
ceedings. The  peculiarities  of  adverse  suits  in  patent  application  mat- 
ters have  been  discussed  fully  in  chapter  XIX,  supra.1  By  statute 
ejectment  will  lie  for  a  mining  claim,  although  the  paramount  title  is 
in  the  United  States.2  The  same  is  true  of  a  suit  to  quiet  title.3 

1  As  against  all  but  the  United  States  an  unpatented  claim  is  treated  as 
real  property  held  in  fee,  and  will  support  a  suit  to  quiet  title.     Mt.  Rosa 
Mining,  Milling  &  Land  Co.  v.  Palmer,  26  Colo.  56,  56  Pac.  176 ;    Fulkerson  v. 
Chrisna  Min.  &  Imp.  Co.,  122  Fed.  782,  58  C.  C.  A.  582.     To  be  in  posses- 
sion at  the  time  of  wrongful  entry  it  is,  of  course,  not  necessary  to  be  actually 
on  the  property.     Davis  v.  Dennis,  43  Wash.  54,  85  Pac.  1079.    A  trespasser, 
having  possession  of  the  surface  of  mineral  land,  may  eject  a  subsequent 
trespasser  who  enters  beneath  the  surface.     Lincoln-Lucky  &  Lee  Min.  Co. 
v.  Hendry,  9  N.  M.  149,  50  Pac.  330. 

2  Rev.  St.  U.  S.  §  910  (U.  S.  Oomp.  St.  1901,  p.  679).     See  Davidson  v.  Cal- 
kins (C.  C.)  92  Fed.  230,  232. 

s  Fulkerson  v.  Chrisna  Min.  &  Imp.  Co.,  122  Fed.  782,  58  C.  C.  A.  582. 


§  144a)  TEE8PA8S.  613 


TRESPASS. 

144.  Trespass  is  the  action  usually  resorted  to  when  damages  are 
sought  for  the  wrongful  taking  of  ore. 

Trespass  is  the  action  usually  resorted  to  when  damages  are  sought 
for  the  unlawful  extraction  of  ore.  This  is  true,  even  where  the  ore 
is  taken  on  the  dip  of  the  vein  outside  the  surface  line  planes  ex- 
tended downward,  for  the  reason  that  the  ownership  and  possession 
of  a  vein  which  has  extralateral  rights  gives  the  owner  of  the  apex 
of  the  vein  possession  of  its  dip  between  the  bounding  end  line  planes 
of  his  location  extended  as  far  as  the  dip  goes.* 

SAME— THE  MEASURE  OF  DAMAGES. 

144a.  The  measure  of  damages  for  the  taking  of  ore  varies  in  dif- 
ferent jurisdictions.  In  some  the  good  faith  of  the  defendant 
will  enable  him  to  deduct  the  cost  of  getting  out  the  ore, 
and  in  others  it  will  not;  and,  to  put  it  in  another  way,  in 
some  the  bad  faith  of  the  defendant  will  prevent  him  from 
deducting  the  cost  of  getting  out  the  ore,  and  in  others  it 
'will  not.  In  some  the  bad  faith  of  the  defendant  makes 
him  liable  for  exemplary  damages,  and  in  others  it  does  not. 

The  real  difficulty,  where  ore  is  taken,  is  the  measure  of  damages. 
On  that  question  there  is  great  conflict  of  authority.  It  seems  to 
be  well  settled  that  one  who  by  innocent  mistake  of  fact  mines  the 
ore  of  another  or  cuts  down  his  standing  timber  has  a  right  of  a 
quasi  contractual  nature  to  mitigate  the  damages  by  deducting  from 
the  fair  value  of  the  ore  or  timber,  after  its  severance  from  the  soil, 
the  amount  which  that  value  has  been  enhanced  by  his  labor  in  get- 
ting out  the  ore  and  the  timber.8  In  other  words,  the  majority  of 

Where  the  title  to  minerals  is  severed  from  title  to  the  surface,  it  .seems 
that  a  suit  to  quiet  title  to  the  minerals  under  the  surface  may  be  maintained, 
though  plaintiff  is  not  in  actual  possession  of  the  land.  Combs  v.  Virginia 
Iron,  Coal  &  Coke  Co.,  32  Ky.  Law  Rep.  601,  106  S.  W.  815. 

*  FLAGSTAFF  SILVER  MINING  CO.  v.  TARBET,  98  U.  S.  463,  25  L.  Ed. 
253;  MONTANA  MIN.  CO.  v.  ST.  LOUIS  MIN.  &  MILL,  CO.,  102  Fed.  430, 
42  C.  C.  A.  415 ;  Eilers  v.  Boatman,  3  Utah,  159,  2  Pac.  66 ;  Pardee  v.  Mur- 
ray, 4  Mont.  234.  2  Pac.  16. 

s  WATERS  v.  STEVENSON,  13  Nev.  157,  29  Am.  Rep.  293 ;  Empire  Gold 
Min.  Co.  v.  Bonanza  Gold  Min.  Co.,  67  Cal.  406,  7  Pac.  810;  DONOVAN  T. 
CONSOLIDATED  COAL  CO.,  187  111.  28,  58  N.  E.  290,  79  Am.  St  Rep.  206 ; 
Austin  v.  Huntsville  Conl  &  Min.  Co.,  72  Mo.  535,  37  Am.  Rep.  446 ;  DURANT 
MIN.  CO.  T.  PERCY  CONSOL.  MIN.  CO.,  93  Fed.  166,  35  C.  C.  A.  252 ;  Hall 
v.  Abraham,  44  Or.  477,  75  Pac.  882;  Colorado  Cent.  Consol.  Min.  Co.  T. 
Turck,  70  Fed.  294,  17  C.  C.  A.  128;  Anderson  v.  Besser,  131  Mich.  481,  *t 
COST.MIN.L.— 33 


514  MINING   REMEDIES.  (Ch.   27 

the  courts  allow  the  plaintiff  simply  the  value  of  the  ore  or  timber 
before  its  severance  from  the  land.6  A  few  jurisdictions,  however,  do 
not  allow  the  morally  innocent  defendant  to  deduct  anything,  but  give 
the  plaintiff  the  value  of  the  ore  after  severance.7  One  jurisdiction 
favors  the  rule  of  allowing  the  recovery  of  a  reasonable  royalty 
against  a  defendant  who  acted  in  good  faith.*  If,  in  addition,  to 
the  defendant's  action  being  in  good  faith,  the  plaintiff  has  know- 
ingly let  the  defendant  labor  under  the  mistake,  the  defendant's 
right  everywhere  to  a  deduction  of  the  increase  in  value  which  he 
gave  the  ore  or  timber  would  seem  to  be  perfectly  clear.8  Some 
courts,  which  have  repudiated  the  doctrine  of  exemplary  damages, 
or  which  consciously  or  unconsciously  are  influenced  by  the  doctrine 
of  Britton  v.  Turner 9  and  kindred  quasi  contract  cases,  allow  the 
defendant  who  knowingly  trespasses  the  same  deduction  as  they  al- 
low an  innocent  defendant.10  Other  courts,  either  because  they  al- 
low exemplary  damages  or  because  they  deny  to  a  wrongdoer  a  quasi 
contractual  recovery,  allow  an  innocent  plaintiff  to  recover  from 
the  willful  trespasser  the  value  of  the  property  at  the  time  it  is  finally 
converted  to  the  use  of  the  trespassers ;  i.  e.,  its  value  as  enhanced  by 
the  labor  of  the  defendant.11  A  similar  rule  has  been  applied  in 

N.  W.  737 ;  Crawford  v.  Forest  Oil  Co.,  208  Pa.  5,  57  Atl.  47.  See  Montrozona 
Gold  Min.  Co.  v.  Thatcher,  19  Colo.  App.  371,  75  Pac.  595.  Nowhere,  however, 
is  the  trespasser  allowed  to  charge  against  the  owner  the  cost  of  running  lev- 
els, drifts,  and  cross  cuts  to  reach  the  vein.  St.  Clair  v.  Cash  Gold  mining 
&  Milling  Co.,  9  Colo.  App.  235,  241,  47  Pac.  466. 

e  Forsyth  v.  Wells,  41  Pa.  291,  80  Am.  Dec.  617 ;  EGE  v.  KILLE,  84  Pa. 
333;  DURANT  MIN.  CO.  v.  PERCY  CONSOL.  MIN.  CO..  03 -Fed.  Ififi.  35 
C.  C.  A.  252 ;  Maye  v.  Yappen,  23  Cal.  306 ;  United  States  v.  Ute  Coal  &  Coke 
Co.  (C.  C.)  158  Fed.  20.  See,  also,  cases  in  note  5,  supra. 

7  See  White  v.  Yawkey,  108  Ala.  270,  19  So.  360,  32  L.  R.  A.  1D9,  54  Am.  St. 
Rep.  159;  IVY  COAL  &  COKE  CO.  v.  ALABAMA  COAL  &  COKE  CO.,  135 
Ala.  579,  33  So.  547,  93  Am.  St.  Rep.  46 ;  Atlantic  &  G.  C.  Consol.  Coal  Co.  v. 
Maryland  Coal  Co.,  62  Md.  135. 

*  Sandy  River  Cannel  Coal  Co.  v.  White  House  Cannel  Coal  Co.,  30  Ky. 
Law  Rep.  1308,  101  S.  W.  319. 

a  SINGLE  v.  SCHNEIDER,  24  Wis.  299 ;  Gustin  v.  Embury-Clark  Lumber 
Co.,  145  Mich.  101,  108  N.  W.  650. 

»  6  N.  H.  481,  26  Am.  Dec.  713. 

loWEYMOUTH  v.  CHICAGO  &  N.  W.  R.  CO.,  17  Wis.  550,  &4  Am.  Dec. 
763 ;  Carpenter  v.  Lingenf elter,  42  Neb.  728,  60  N.  W.  1022,  32  L.  R.  A.  422 ; 
Omaha  &  Grant  Smelting  &  Refining  Co.  v.  Tabor,  13  Colo.  41,  21  Pac.  925,  5 
L.  R.  A.  236,  16  Am.  St.  Rep.  185.  But  see  St.  Clair  v.  Cash  Gold  Mining  & 
Milling  Co.,  9  Colo.  App.  235,  47  Pac.  466.  Such  a  jurisdiction  naturally  al- 
lows the  same  deduction  where,  in  addition,  the  plaintiff's  conduct  is  repre- 
hensible. SINGLE  v.  SCHNEIDER,  30  Wis.  570. 

11  BENSON  MINING  &  SMELTING  CO.  v.  ALTA  MINING  &  SMELTING 


§  144a)  TRESPASS.  515 

some  states  where  the  defendant's  trespass  was  not  willful,  but  was 
negligent.12  Indeed,  it  has  even  been  held  that  an  additional  recov- 
ery of  exemplary  damages  may  be  had.13  The  question  of  damages 
for  innocent  or  willful  trespass  is  sometimes  complicated  by  innocent 
or  willful  confusion  of  goods,  and  occasionally  by  accession.14  It  is 
also  complicated  at  times  by  having  the  willful  trespasser  sell  to  an 
innocent  third  person,  who  is  sued  in  trover.15 

The  damages  above  mentioned  are  recoverable  only  by  the  owner 
of  the  ore.  A  licensee  cannot  recover  the  value  of  ore  in  place  tak- 

CO.,  145  U.  S.  428,  12  Sup.  Ct.  877,  36  L.  Ed.  762 ;  Bolles  Woodenware  Co.  v. 
United  States,  106  U.  S.  432,  1  Sup.  Ct.  398,  27  L.  Ed.  230;  Dougherty  v. 
Chestnutt,  86  Term.  1,  5  S.  W.  444;  United  States  v.  Ute  Coal  &  Coke  Co. 
(C.  C.  A.)  158  Fed.  20 ;  United  States  v.  Homestake  Min.  Co.,  117  Fed.  481, 
54  C.  C.  A.  303 ;  Cheesman  v.  Shreeve  (C.  C.)  40  Fed.  787 ;  Cheeney  v.  Ne- 
braska &  C.  Stone  Co.  (C.  C.)  41  Fed.  740;  Barton  Coal  Co.  v.  Cox,  39  Md. 
1,  17  Am.  Rep.  525;  Baker  v.  Hart,  52  Hun,  363,  5  N.  Y.  Supp.  345.  By 
statute  in  at  least  one  state  a  diligent  plaintiff  may  recover  the  highest 
market  value  of  the  ore  converted  at  any  time  between  the  conversion  and  the 
verdict.  Golden  Reward  Min.  Co.  v.  Buxton  Min,  Co.,  97  Fed.  413,  38  C. 
O.  A.  228.  See,  also,  Sunnyside  Coal  &  Coke  Co.  v.  Reitz,  14  Ind.  App.  478, 
39  N.  E.  541,  43  N.  E.  46. 

12  Donovan  v.  Consolidated  Coal  Co.,  187  111.  28,  58  N.  E.  290,  79  Am.  St. 
Rep.  206;  Sunnyside  Coal  &  Coke  Co.  v.  Reitz,  14  Ind.  App.  478,  39  N.  E. 
541,  43  N.  E.  46.  But  see,  contra,  Durant  Min.  Co.  v.  Percy  Consol.  Min.  Co., 
93  Fed.  166,  35  C.  C.  A.  252.  A  deliberate  refusal  to  learn  about  boundaries 
is  more  than  negligence,  and  makes  the  defendant  a  willful  trespasser.  Res- 
urrection Gold  Min.  Co.  v.  Fortune  Gold  Min.  Co.,  129  Fed.  668,  64  C.  C.  A. 
180.  Compare  United  States  v.  Ute  Coal  &  Coke  Co.  (C.  C.  A.)  158  Fed.  20,  at 
page  24. 

is  FRANKLIN  COAL  CO.  v.  McMILLAN,  49  Md.  549,  33  Am.  Rep.  280; 
Illinois  &  St.  L.  R.  &  Coal  Co.  v.  Ogle,  92  111.  353. 

i*  Cheesman  v.  Shreeve  (C.  C.)  40  Fed.  787 ;  Little  Pittsburg  Con.  Min.  Co. 
v.  Little  Chief  Con.  Min.  Co.,  11  Colo.  223,  234,  17  Pac.  760,  7  Am.  St.  Rep. 
226;  Maloney  v.  King,  30  Mont.  158,  76  Pac.  4;  Stone  v.  Marshall  Oil  Co., 
208  Pa.  85,  57  Atl.  183,  65  L.  R.  A.  218,  101  Am.  St.  Rep.  904 ;  Great  Southern 
Gas  &  Oil  Co.  v.  Logan  Natural  Gas  &  Fuel  Co.,  155  Fed.  114,  83  C.  C.  A.  574. 

is  In  TUTTLE  v.  WHITE,  46  Mich.  485,  9  N.  W.  528,  41  Am.  Rep.  175, 
such  an  innocent  purchaser  of  logs  from  one  who  willfully  cut  them  from 
plaintiff's  land  was  allowed  to  deduct  only  the  enhanced  value  arising  from 
the  purchaser's  money  and  labor;  but  in  OMAHA  &  GRANT  SMELTING  & 
REFINING  CO.  v.  TABOR,  13  Colo.  41,  56,  57,  21  Pac.  925,  5  L.  R.  A.  236, 
16  Am.  St.  Rep.  185,  such  a  purchaser  of  ore  willfully  severed  was  made  li- 
able for  only  the  value  of  the  ore  less  the  reasonable  and  proper  cost  of 
raising  it  from  the  mine  after  it  was  broken  and  hauling  it  from  the  mine  to 
the  place  of  sale.  The  problem  will  be  solved  differently  in  the  various  ju- 
risdictions. An  innocent  purchaser  being  liable  in  trover,  it  is  perfectly  clear 
that  a  knowing  one  is  similarly  liable.  United  States  v.  Ute  Coal  &  Coke 
Co.  (C.  C.  A.)  158  Fed.  20. 


516  MINING   REMEDIES.  (Ch.   27 

en  by  a  trespasser,  but  can  recover  damages  if  the  trespasser  dimin- 
ishes the  supply,  so  that  enough  does  not  remain  to  satisfy  his  right.16 

It  has  been  held  that  a  city  in  which  the  fee  of  its  streets  is  vested 
in  trust  for  the  public  has  a  right  of  action  for  the  full  value  of  coal 
taken  from  under  such  streets  without  its  consent,  even  though  the 
removal  of  the  coal  does  not  affect  the  use  of  the  land  for  street  pur- 
poses.17 

Where  ore  has  been  taken  by  trespass  and  sold,  the  tort  may  be 
waived,  and  an  action  for  money  had  and  received  maintained.18 


TROVER   AND   REPLEVIN. 

145.  Trover  and  replevin  may  also  be  resorted  to  where  ore  lias  "been 
taken,  but  neither  trover  nor  replevin  will  lie  for  ore  mined 
by  a  disseisor,  unless  the  action  is  brought  after  the  disseisor 
has  been  ejected. 

What  has  been  said  of  the  measure  of  damages  in  trespass  is  true 
also  of  trover.  "In  very  strict  form,  trespass  is  the  proper  remedy 
for  a  wrongful  taking  of  personal  property,  and  for  cutting  timber, 
or  quarrying  stone,  or  digging  coal  on  another  man's  land  and  carry- 
ing it  away;  and  yet  the  trespass  may  be  waived  and  trover  main- 
tained, without  giving  up  any  claim  for  any  outrage  or  violence  in  the 
act  of  taking.  *  *  *  But  when  the  law  does  allow  this  departure  from 
the  strict  form,  it  is  not  in  order  to  enable  the  plaintiff,  by  his  own 
choice  of  actions,  to  increase  his  recovery  beyond  just  compensation, 
but  only  to  give  him  a  more  convenient  form  for  recovering  that 
much."  » 

What  is  here  said  of  trover  is  also  true  of  replevin  where  a  rede- 
livery  bond  has  been  given,20  though  there  seems  to  be  no  doubt  that 
the  property  in  its  changed  state  belongs  to  the  plaintiff  unless  the 
unintentional  trespasser  has  acquired  title  by  accession.21 

J«  Arnold  v.  Bennett,  92  Mo.  App.  156. 

17  Union  Coal  Co.  v.  City  of  La  Salle,  136  111.  119,  26  N.  B.  506,  12  L.  R.  A. 
326.  But  see  City  of  Leadville  v.  Bohn  Mining  Co.,  37  Colo.  248,  86  Pac.  1038, 
8  L.  R.  A.  (N.  S.)  422. 

isMcGONIGLE  v.  ATCHISON,  33  Kan.  726,  7  Pac.  550;  Alderson  v.  En- 
nor,  45  111.  128. 

19  FORSYTH  v.  WELLS,  41  Pa.  291,  80  Am.  Dec.  617;  United  States  v.  Ute 
Coal  &  Coke  Co.  (O.  C.  A.)  158  Fed.  20.     See  Smoot  v.  Consolidated  Coal  Co., 
114  111.  App.  512.     For  a  discussion  of  the  technical  ground  on  which  greater 
recovery  was  once  allowed  in  trover  than  in  trespass,  see  2  Sedgwick  on 
Damages,  §§  500-503. 

20  HERDIC  v.  YOUNG,  55  Pa.  176,  93  Am.  Dec.  739.     See  Single  v.  Schnei- 
der, 24  Wis.  299. 

ai  See  Anderson  T.  Besser,  131  Mich.  481,  91  N.  W.  737  (timber). 


§  146)  INJUNCTION.  517 

But  with  reference  both  to  trover  and  to  replevin  it  must  be  borne 
in  mind  that,  where  there  has  been  a  disseisin  prior  to  the  mining  of 
the  ore,  the  adverse  possession  raises  a  question  as  to  the  title  to  the 
ground  and  to  the  ore  which  makes  it  impossible  to  maintain  the  ac- 
tion of  trover  or  that  of  replevin.22  In  such  case  the  real  owner  of 
the  land  must  instead  resort  to  his  remedy  for  the  possession  of  the 
land  and  mesne  profits,23  though  it  seems  that,  after  the  recovery  of 
possession  in  ejectment,  trover  or  replevin  may  be  maintained  for  prop- 
erty severed  during  the  disseisin.2* 

IN  JUNCTION. 

146.    The   general    equity   doctrines    about   injunction    apply   in    min- 
ing cases. 

While  in  mining  cases,  as  in  others,  temporary  injunctive  relief 
is  normally  granted  simply  to  preserve  the  property  pending  the  ju- 
dicial determination  of  its  ownership,25  it  must  be  noticed  that  under 

22  OPHIR  SILVER  MIN.  CO.  V.  SUPERIOR  COURT  OF  CITY  &  COUN- 
TY OF  SAN  FRANCISCO,  147  Cal.  467,  82  Pac.  70;   LEHIGH  ZINC  &  IRON 
CO.  v.  NEW  JERSEY  ZINC  &  IRON  CO.,  55  N.  J.  Law,  350,  26  Atl.  920; 
Brown  v.  Caldwell,  10  Serg.  &  R.  (Pa.)  114,  13  Am.  Dec.  660 ;    National  Tran- 
sit Co.  v.  Weston,  121  Pa.  485,  15  Atl.  569.     See  Harrison  v.  Hoff,  102  N. 
C.  126,  9  S.  E.  638 ;   Page  v.  Fowler,  28  Oal.  605 ;   Anderson  v.  Hapler,  34  111. 
436,  85  Am.  Dec.  318. 

23  "So  long  as  the  owner  is  disseised  by  the  adverse  possession  of  another, 
he  must  resort  to  his  legal  remedy  to  recover  the  principal  thing — the  posses- 
sion of  the  land — and  he  cannot  be  permitted  to  institute  separate  suits  for 
every   act  of  his  adversary  which  is  merely   incidental  to  that  possession. 
When  he  recovers  possession  by  ejectment,  then  in  a  single  suit  he  may  re- 
cover also  damages  for  all  that  he  lost  by  being  deprived  of  the  possession." 
LEHIGH  ZINC  &  IRON  CO.  v.  NEW  JERSEY  ZINC  &  IRON  CO.,  55  N.  J. 
Law,  350,  358,  26  Atl.  920.     Compare  Wright  v.  Guier,  9  Watts  (Pa.)  172,  177, 
178,  36  Am.  Dec.  108. 

24  See  WILSON  v.  HOFFMAN,  93  Mich.  72,  52  N.  W.  1037,  32  Am.  St.  Rep. 
485;    Alliance  Trust  Co.  v.  Hardwood  Co.,  74  Miss.  584,  21  South.  396,  36  L. 
R.  A.  155,  60  Am.   St.  Rep.  531;   Morgan  v.  Varick,   8  Wend.  (N.  Y.)  587; 
Pacific  Live  Stock  Co.  v.  Isaacs  (Or.)  96  Pac.  460.    But  see  Brothers  v.  Hur- 
dle, 32  N.  C.  490,  51  Am.  Dec.  400. 

25ERHARDT  v.  BOARO,  113  U.  S.  537,  5  Sup.  Ct.  565,  28  L.  Ed.  1116; 
Lockhart  v.  Leeds,  195  U.  S.  427,  25  Sup.  Ct  76,  49  L.  Ed.  263;  Preteca  v. 
Maxwell  Land  Grant  Co.,  50  Fed.  674,  1  C.  C.  A.  607;  Dimick  v.  Shaw,  94 
Fed.  266,  36  O.  C.  A.  347.  Working  for  exploration  only  will  not  be  enjoined. 
St.  Louis  Min.  &  Mill.  Co.  v.  Montana  Min.  Co.  (C.  C.)  58  Fed.  129.  Nor  will 
an  injunction  against  a  defendant  be  dissolved  because  the  complainant  in- 
terferes with  the  enjoined  premises  to  do  necessary  assessment  work  and  to 
perform  acts  required  to  save  insurance  on  the  property  from  being  forfeited. 
SILVER  PEAK  MINES  v.  HANCHETT  (C.  C.)  93  Fed.  76. 


518  MINING   REMEDIES.  (Cll.  27 

some  state  statutes  mandatory  injunctions  issue  to  restore  posses- 
sion of  the  property  to  an  ousted  plaintiff.26  Apart  from  such  stat- 
utory remedies,  which  the  federal  courts  may  enforce  if  they  see 
fit,27  the  general  equity  doctrines  govern  injunctions  with  reference 
to  mining  claims.28  The  granting  or  withholding  of  an  injunction 
resting  in  the  sound  discretion  of  the  trial  court,  the  complainant's 
laches,29  the  solvency  or  insolvency  of  the  parties,30  and  the  relative 
inconveniences  to  the  parties  which  will  ensue  if  a  temporary  injunc- 
tion issues/1  must  be  considered.  There  is  nothing  peculiar  in  the 
application  of  the  general  equitable  principles  to  mining  claims  be- 
yond the  frequent  urgent  need  of  injunctive  relief  because  of  the 
destructible  nature  of  mineral  deposits.! 

26  SPRAGUE  v.  LOCKE,  1  Colo.  App.  171,  28  Pac.  142;    Cole  v.  Cady,  2 
Dak.  29,  3  N.  W.  322. 

27  Aspen  Mining  &  Smelting  Co.  v.  Rucker  (C.  C.)  28  Fed.  220. 

28  See  NEGAUNEE  IRON  CO.  v.  IRON  CLIFFS  CO.,  134  Mich.  264,  96 
N.  W.  468.    An  injunction  will  not  lie  on  proof  of  a  single  act  of  trespass. 
Parker  v.  Furlong,  37  Or.  248,  62  Pac.  490.     But  in  a  proper  case  trespass 
will  be  enjoined.     Muldrick  v.  Brown,  37  Or.   185,   61   Pac..  428;   Integrity 
Min.  &  Mill.  Co.  v.  Moon  (Mo.  App.)  109  S.  W.  1057;    Oolagah  Coal  Co.  v. 
McCaleb,  68  Fed.  86,  15  C.  C.  A.  270. 

29  Patterson  v.  Hewitt,  11  N.  M.  1,  66  Pac.  552,  55  L.  R.  A.  658. 
soLOCKHART  v.   LEEDS,  195  U.   S.  427,  25  Sup.  Ct.  76,  49  L.  Ed.  263; 

Clark  v.  Wall,  32  Mont  219,  79  Pac.  1052.  The  mere  insolvency  of  defendant 
is  not  enough  to  justify  the  granting  of  an  injunction.  Parker  v.  Furlong,  37 
Or.  248,  62  Pac.  490.  Nor  will  one  be  dissolved  because  of  defendant's  sol- 
vency. Mable  Min.  Co.  v.  Pearaon  Coal  &  Iron  Co.,  121  Ala.  567,  25  South. 
754.  See,  also,  Boyd  v.  Desrozier,  20  Mont.  444,  52  Pac.  53. 

si  COPPER  KING  v.  WABASH  MIN.  CO.  (C.  C.)  114  Fed.  991 ;  Lloyd  v. 
Catlin  Coal  Co.,  210  111.  460,  71  N.  E.  335;  Berkey  v.  Berwood- White  Coal 
Min.  Co.,  220  Pa.  65,  69  Atl.  329.  Compare  Crescent  Min.  Co.  v.  Silver  King 
Min.  Oo.,  14  Utah,  57,  45  Pac.  1093. 

fA  mining  licensee,  as  such  incapable  of  maintaining  an  action  for  unlaw- 
ful detainer,  was  allowed  an  injunction  to  restrain  a  trespass  upon  his  posr 
session  in  Integrity  Min.  &  Mill.  Co.  v.  Moon  (Mo.  App.)  109  S.  W.  1057. 


§  148)  INSPECTION   AND   SURVEY.  519 

ACCOUNTING. 

147.  An  accounting  will  be  ordered  in  a  proper  case. 

Wherever  proper,  an  accounting  will  be  ordered.32 

INSPECTION  AND   SURVEY. 

148.  Both  inspection  and   survey  may  be   ordered   in   equity,  in    tne 

absence  of  statute;    but  in  some  states  they  are  provided  for 
by  statute. 

Independently  of  state  statutes  a  court  of  equity  has  the  power  to 
compel  an  inspection  and  survey  of  mining  claims  when  it  is  shown 
to  be  necessary  to  a  proper  determination  of  the  issues  between  the 
parties.33  For  that  matter,  it  has  been  held  that  where  a  trial  court 
allows  the  evidence  of  one  party  to  an  action  to  be  admitted  as  to 
indications  and  conditions  found  in  a  particular  mining  property  over 
which  that  party  has  absolute  control,  and  an  inspection  of  which  that 
party  denies  to  his  adversary,  who  wants  to  get  a  foundation  for 
rebuttal,  a  new  trial  will  be  granted.34 

But  in  a  number  of  the  mining  law  states  and  territories  the  mat- 
ter of  inspection  and  survey  is  regulated  by  statute.35  Under  the  most 
of  these  statutes,  as  is  true  of  equity's  action  in  the  absence  of  statute, 
the  inspection  and  survey  cannot  be  ordered,  except  in  aid  of  a  suit 
already  started,  though  it  may  be  ordered  in  the  suit  in  which  the 
order  is  asked.36  But  in  Montana  the  statute  authorizes  an  inspection 

32  SWEAR1NGEN  v.  STEERS,  49  W.  Va.  312,  38  S.  E.  510.  See  the  dis- 
cussion in  chapter  XXV,  §  136a,  on  the  right  of  a  co-tenant  to  an  accounting. 

ss  BLUE  BIRD  MIN.  CO.  v.  MURRAY,  9  Mont.  468,  23  Pac.  1022.  See 
Montana  Co.  v.  St.  Louis  Min.  &  Mill.  Co.,  152  U.  S.  160,  14  Sup.  Ct.  506,  38 
L.  Ed.  398;  Thomas  Iron  Co.  v.  Allentown  Min.  Co.,  28  N.  J.  Eq.  77;  Stock- 
bridge  Iron  Co.  v.  Cone  Iron  Works,  102  Mass.  80;  Penny  v.  Central  Coal  & 
Coke  Co.,  138  Fed.  769,  71  C.  C.  A.  135 ;  Duggan  v.  Davey,  4  Dak.  110,  26 
N.  W.  887. 

S*  AMBERGRIS  MIN.  CO.  v.  DAY,  12  Idaho,  108,  85  Pac.  109. 

3  5  Code  Civ.  Proc.  Oal.  §§  742,  743;  Mills'  Ann.  St.  Colo.  §§  3164,  3176; 
Code  Civ.  Proc.  Idaho  1901,  §§•  3383,  3384 ;  Rev.  Code  Civ.  Proc.  Mont.  §  6876 ; 
Comp.  Laws  Nev.  §  252 ;  Rev.  Codes  N.  D.  1899,  §  1442 ;  Ann.  St.  S.  D.  1899, 
§  2672;  Rev.  St.  Utah  1898,  §§  3515,  3516.  In  Colorado  either  party  has  a 
right  to  have  the  jury  view  the  premises.  Laws  Colo.  1893,  p.  78,  c.  42. 
See  Ormund  v.  Granite  Mountain  Min.  Co.,  11  Mont.  303,  28  Pac.  289. 

se  PEOPLE  v.  DE  FRANCE.  29  Colo.  309,  68  Pac.  267;  State  v.  District 
Court,  26  Mont.  396,  68  Pac.  570,  69  Pac.  103. 


520  MINING   REMEDIES.  (Ch.  27 

and  survey  without  suit,  and  the  statute  has  been  held  to  be  constitu- 
tional.57 

Where  a  jury  is  allowed  to  view  premises,  it  seems  that  the  jury, 
in  applying  and  weighing  the  evidence,  is  to  consider  the  knowledge 
acquired  by  the  view;  S8  but  states  differ  on  that  general  question. 


RECEIVERSHIPS. 

149.   The  general  rules  about  receiverships  apply  to  receiverships  of 
mining  property. 

A  mining  claim  may  require  the  appointment  of  a  receiver.3'  Un- 
less otherwise  specified  by  statute  or  by  the  order  appointing  him,  a 
receiver  of  mining  property  has  no  power  to  work  the  same,  except 
that  in  the  case  of  unpatented  claims  he  may  perform  the  assessment 
work  necessary  to  save  them  from  forfeiture.  The  business  of  a  re- 
ceiver of  a  mining  property  is  to  preserve  the  property  and  to  close 
out  the  business  turned  over  to  him,40  and  a  court  of  equity  has  no 
authority  to  direct  its  receiver  in  charge  of  mines  to  carry  on  a  gen- 
eral mining  business  and  to  charge  up  the  losses  against  the  property 
as  a  preference  over  prior  recorded  mortgages  and  incumb ranees.41 

37  Montana  Co.  v.  St.  Louis  Min.  &  Mill.  Co.,  152  U.  S.  160,  14  Sup.  Ct 
506,  88  L.  Ed.  398;  State  v.  District  Court,  26  Mont.  416,  424,  68  Pac.  794, 
946.  The  Montana  court  will  not  allow  the  statute  to  be  made  an  instrument 
of  injustice  and  oppression.  State  v.  District  Court,  25  Mont.  572,  65  Pac. 
1020;  Id.,  28  Mont.  528,  73  Pac.  230;  Id.,  30  Mont.  206,  76  Pac.  206. 

ss  McCORMICK  v.  PARRIOTT,  33  Colo.  382,  80  Pac.  1044.  A  view  need 
not  be  ordered  where  the  evidence  does  not  make  out  a  case  sufficient  to  go 
to  the  jury.  McMillen  v.  Ferrum  Min.  Co.,  32  Colo.  38,  74  Pac.  461,  105  Am. 
St.  Rep.  64.  That  the  trial  court  by  consent  of  the  parties  inspected  the 
claim  is  a  fact  to  which  the  upper  court  can  give  no  weight.  Dibble  v.  Castle 
Chief  Gold  Min.  Co.,  9  S.  D.  618,  70  N.  W.  1055 ;  Golden  v.  Murphy,  27  Nev. 
379,  75  Pac.  625,  76  Pac.  29.  That  a  party  to  the  suit  may  be  appointed  to 
show  the  mine  to  the  jury,  see  Wilson  v.  Harnette,  32  Colo.  172,  75  Pac.  395. 
On  misconduct  by  the  guide,  corrected  by  an  instruction,  see  Beals  v.  Gone, 
27  .Colo.  473,  62  Pac.  948,  83  Am.  St.  Rep.  92. 

39  See  Nevada  Sierra  Oil  Co.  v.  Home  Oil  Co.  (C.  C.)  98  Fed.  673;   Hill  v. 
Taylor,  22  Cal.  191 ;   Parker  v.  Parker,  82  N.  C.  165. 

40  Hendrie  &  Bolthoff  Mfg.  Co.  v.  Parry,  37  Colo.  359,  86  Pac.  113. 

41  DALLIBA  v.  RIGGS,  11  Idaho,  364,  82  Pac.  107,  114  Am.  St.  Rep.  267; 
Farmers'  Loan  &  Trust  Co.  v.  Grape  Creek  Coal  Co.  (C.  C.)  50  Fed.  481,  16  L. 
R.  A.  603.    But  see  Traylor  v.  Barry,  96  111.  App.  644. 


§  150)  PARTITION.  521 

PARTITION". 
15O.    The  general  rules  about  partition  apply  to  mining  property. 

Both  patented  and  unpatented  mining  claims  may  be  partitioned.42 
From  the  difficulty  of  making  an  actual  division  of  the  ground  that 
will  be  equitable,  partition  proceedings  affecting  mining  claims  usually 
result  in  a  sale  of  the  -property  and  a  division  of  the  proceeds  ;1  but, 
whenever  possible,  the  ground  will  actually  be  divided.43  An  actual 
division  by  parol  agreement  of  partition  will  be  upheld.44  Where  the 
surface  of  mineral  lands  is  owned  by  one  person  and  the  mineral  un- 
derneath by  another,  the  surface  land  may  be  partitioned  the  same 
as  if  there  were  no  severance.45  Where  a  lessee  participates  in  a  par- 
tition of  oil  land,  and  recognizes  the  several  ownerships  of  the  parti- 
tioned premises,  the  character  of  his  holding  may  change  from  that  of 

42  HUGHES  v.  DEVLIN,  23  Cal.  502;    Aspen  Mining  &  Smelting  Co.  v. 
Rucker  (C.  O.)  28  Fed.  220.     But  see  Strettell  v.  Ballou  (C.  C.)  9  Fed.  256. 
For  necessary  averments  to  secure  a  partition  of  the  interests  of  lessees  of 
the  usual  oil  and  gas  lease,  see  Beardsley  v.  Kansas  Natural  Gas  Co.  (Kan.) 
96  Pac.  859. 

t  "Mining  property  from  its  very  nature  is  not  as  a  rule  susceptible  of 
partition.  The  ores  are  unevenly  distributed,  while  the  values  are  purely  con- 
jectural until  tested  by  extended  development  and  careful  tests,  which  can 
only  be  obtained  as  the  result  of  a  vast  expenditure  of  money  and  time ;  so 
that  it  is  known  in  advance  of  bringing  suit  for  partition  that  the  only  feas- 
ible relief  that  can  be  awarded  is  a  decree  for  the  sale  of  the  property." 
Brown  v.  Challis,  23  Colo.  145,  46  Pac.  679,  680.  See  Lenfers  v.  Henke,  73 
111.  405,  24  Am.  Rep.  263;  Hall  v.  Vernon,  47  W.  Va.  295,  34  S.  E.  764,  81 
Am.  St.  Rep.  791. 

43  Ball  v.  Confidence  Silver  Min.  Co.,  3  Nev.  531,  93  Am.  Dec.  419;   Mitchell 
v.  Cline,  84  Cal.  409,  24  Pac.  164.     For  the  rule  under  the  Alaska  Code,  see 
Manley  v.  Boone  (C.  C.  A.)  159  Fed.  633.     So  far  as  possible  improved  parts 
of  the  land  will  be  awarded  to  those  equitably  entitled  to  the  improvements. 
BRINKMEYER  v.  RANKIN,  22  Ky.  Law  Rep.  1881,  61  S.  W.  1007. 

44  Four  Hundred  &  Twenty  Min.  Co.  v.  Bullion  Min.  Co.,  3  Sawy.  (U.  S.) 
346,  Fed.  Cas.  No.  4,989.     For  a  similar  holding  as  to  adoption  of  boundary 
lines,  see  TONOPAH  &  S.  L.  MIN.  CO.  v.  TONOPAH  MIN.  CO.  OF  NEVADA 
(C.  C.)  125  Fed.  400.     But  an  oral  agreement  as  to  boundary  lines  cannot  af- 
fect the  extralateral  rights  of  one  who  has  bought  in  ignorance  of  the  agree- 
ment, where  those  extralateral  rights  are  asserted  by  him  against  third  par- 
ties owning  junior  claims.     Empire  State-Idaho  Mining  &  Developing  Co.  v. 
Bunker  Hill  &  Sullivan  Mining  &  Concentrating  Co.,  131  Fed.  591,  66  C.  C.  A. 
99.     An  agreement  that  one  should  locate  and  get  patent  and  convey  to  the 
others  their  shares  was  held  not  to  constitute  a  partition,  though  the  others 
occupied  their  agreed  tracts,  in  Mullins  v.  Butte  Hardware  Co.,  25  Mont.  525, 
65  Pac.  1004,  87  Am.  St.  Rep.  430. 

45  SMITH  T.  JONES,  21  Utah,  270,  60  Pac.  1104;    Same  v.  Forbes,  Id. 


522  MINING   REMEDIES.  (Ch.   27 

lessee  of  the  joint  owners  of  the  whole  tract  to  lessee  of  each  owner 
of  the  respective  tracts.** 

CONDEMNATION  PROCEEDINGS— EMINENT  DOMAIN. 

151.  Except  in  California,  and  possibly,  also,  in  Colorado,  mining  i» 
held  in  the  mining  states  and  territories  to  be  a  public  use, 
justifying  condemnation  proceedings  under  statutes  permit- 
ting such  proceedings  for  mining  purposes.  Under  the  Colo- 
rado Constitution  some  condemnation  may  take  place  for  pri- 
vate mining  use. 

In  the  different  mining  states  and  territories,  condemnation  pro- 
ceedings are  authorized  for  various  purposes.  By  the  federal  stat- 
utes rights  of  way  are  granted  over  public  lands,46  but  by  the  state 
statutes  rights  of  way  may  be  condemned  over  private  property.  The 
different  state  statutes  must  be  consulted,  for  they  are  not  all  alike. 
In  Colorado  the  state  Constitution  was  held  not  to  authorize  a  stat- 
ute providing  for  condemning  a  right  of  way  for  a  tramway,47  yet 
it  was  under  a  Utah  statute  providing  for  condemnation  of  a  right 
of  way  for  a  tramway  that  the  case  went  to  the  United  States  Supreme 
Court  which  caused  that  body  to  declare  that  the  determination  by  the 
Legislature  and  the  Supreme  Court  of  a  mining  state  that  mining  is  a 
public  use  justifying  condemnation  proceedings  by  one  private  mine 
owner  against  another  should  be  accepted.48  California  and  Colorado 
have  been  the  only  mining  law  states  refusing  to  find  a  public  use  in 
mining  sufficient  to  justify  condemnation,49  and  it  'is  to  be  expected 

**  J.  M.  Guffey  Petroleum  Co.  v.  Jeff  Chaison  Townsite  Co.  (Tex.  Civ.  App.) 
107  S.  W.  609. 

46  Rev.  St.  U.  S.  *  2477  (U.  S.  Comp.  St.  1901,  p.  1567) ;    Hobart  v.  Ford,  6 
Nev.  77. 

47  People  v.  District  Court,  11  Colo.  147,  17  Pac.  298.    The  Colorado  court 
thought  in  that  case  that  a  tramway  to  a  privately  owned  mining  claim  was 
clearly  for  a  private  use,  but  the  Utah  court  has  declared  that  it  is  for  a 
public  use.     Highland  Boy  Gold  Min.  Co.  v.  Strickley,  28  Utah,  215,  78  Pac. 
296,  1  L.  R.  A.  (N.  S.)  976,  107  Am.  St.  Rep.  711. 

48  STRICKLEY  v.  HIGHLAND  BOY  GOLD  MIN.  CO.,  200  U.   S.  527,  26 
Sup.  Ct.  301,  50  L.  Ed.  581.     Compare  Clark  v.  Nash,  198  U.  S.  361,  25  Sup. 
Ct.  676,  49  L.  Ed.  1085  (irrigation).    On  condemnation  for  a  tunnel,  see  Tan- 
ner v.  Treasury  Tunnel  Mining  &  Reduction  Co.,  35  Colo.  593,  83  Pac.  464, 
4  L.  R.  A.  (N.  S.)  106. 

49  Consolidated  Channel  Co.  v.  Central  Pac.  R.  Co.,  51  Cal.  269;    People 
v.  Pittsburgh  R.  Co.,  53  Cal.  694 ;    Amador  Queen  Min.  Co.   v.   Dewitt,  73 
Cal.  482,  15  Pac.  74;  People  v.  District  Court  of  Pitkin  County,  11  Colo.  147, 
17  Pac.  298.    The  situation  in  Colorado  is  better  than  that  in  California,  be- 
cause  the  Colorado   Constitution   allows  ways  of  necessity  and    reservoirs, 
drains,  flumes,  or  ditches  on  or  across  private  lands  to  be  taken  for  mining" 


§  153)  ADVERSE   POSSESSION — STATUTES   OF   LIMITATION.  523 

that  the  United  States  Supreme  Court  decision  will  work  a  change  in 
the  rule  in  those  states.  The  other  mining  law  states  and  territories 
have  adopted  the  proper  view  that  mining  is  a  public  use  justifying 
condemnation.50  A  recent  Nevada  statute  allowing  the  location  of 
minerals  in  unfenced  and  unimproved  privately  owned  land,  and  the 
condemnation  of  the  land  located  on  payment  of  a  compensation  to  the 
owner  without  considering  the  minerals,  would  seem,  however,  to  be 
unconstitutional.51 


PERSONAL  INJURY  ACTIONS. 

152.  The  recovery  of  damages  for  personal  injuries  received  in  min- 
ing is  governed  by  the  same  rules  as  prevail  in  equally  haz- 
ardous occupations. 

The  same  rules  govern  the  recovery  of  damages  against  mine  own- 
ers for  personal  injuries  as  prevail  in  equally  hazardous  businesses. 
The  reader  is  referred  to  treatises  on  the  law  of  torts  for  those  rules. 


ADVERSE  POSSESSION-STATUTES  OF  LIMITATION. 

153.  Adverse  possession  of  mining  property  does  not  differ  from  ad- 
verse possession  of  other  real  property.  The  title  to  unpat- 
ented  mining  property  may  be  acquired  by  adverse  possession, 
just  as  the  title  to  patented  mining  property  may  be;  but 
the  running  of  the  statute  against  an  nnpateuted  claim  will 
be  interrupted  by  the  issuance  of  a  patent  to  the  disseisee. 

It  is  well  settled  that  title  to  an  unpatented  mining  claim  may  be 
acquired  by  adverse  possession.52  This  follows  logically  from  the 
provisions  of  Rev.  St.  U.  S.  §  910  (U.  S.  Comp.  St.  1901,  p.  679),  re- 
purposes,  even  though  for  private  use.  Const  Colo.  art.  2,  §§  14,  15.  The  Colo- 
rado Supreme  Court  has  recently  shown  an  enlarged  conception  of  mining  as 
a  public  use  in  Tanner  v.  Treasury  Tunnel  Mining  &  Reduction  Co.,  35  Colo. 
593,  83  Pac.  464,  4  L.  R.  A.  (N.  S.)  106. 

60  Highland  Boy  Gold  Min.  Co.  v.  Strickley,  28  Utah,  215,  78  Pac.  296,  1 
L.  R.  A.  (N.  S.)  976,  107  Am.  St.  Rep.  711;    Dayton  Gold  &  Silver  Min.  Co. 
v.  Seawell,  11  Nev.  394;    Overman  Silver  Min.  Co.  v.  Corcoran,  15  Nev.  147; 
Douglass  v.  Byrnes  (C.  C.)  59  Fed.  31 ;    Byrnes  v.  Douglas,  83  Fed.  45,  27  C. 
C.  A.  399;    Butte,  A.  &  P.  Ry.  Co.  v.  Montana  U.  Ry.  Co.,  16  Mont.  504,  41 
Pac.  232,  31  L,  R.  A.  298,  50  Am.  St.  Rep.  508.     Compare  Oury  v.  Goodwin, 
3  Ariz.  255,  26  Pac.  376  (irrigation). 

61  Laws  Nevada  1907,  p.  140,  c.  65. 

62  GLACIER  MOUNTAIN  SILVER  MIN.  CO.  v.  WILLIS,  127  U.   S.  472, 
8  Sup.  Ct.   1214,  32   L.   Ed.  172;    Altoona  Quicksilver  Min.  Co.  v.   Integral 
Quicksilver  Min.  Co.,  114  Cal.  100,  45  Pac.  1047 ;    Oox  v.  Clough,  70  Cal.  345, 
11  Pac.  732 ;  Herriman  Irr.  Co.  v.  Butterfield  Min.  &  Mill.  Go.,  19  Utah,  453,  57 


524  MINING   REMEDIES.  (Ch.    27 

quiring  each  mining  case  to  be  adjudged  by  the  law  of  possession,  re- 
gardless of  the  fact  that  the  paramount  title  to  the  land  is  in  the  United 
States.  Moreover,  in  Rev.  St.  U.  S.  §  2332  (U.  S.  Comp.  St.  1901,  p. 
1433),  express  provision  is  made  that  possession  of  a  mining  claim  for 
the  period  of  the  state  statute  of  limitations  "shall  be  sufficient  to  estab- 
lish a  right  to  patent  thereto  *  *  *  in  the  absence  of  any  adverse 
claim/'  and,  despite  some  decisions  to  the  contrary,53  it  would  seem  to 
be  clear  that,  even  if  there  is  an  adverse  claim,  the  law  of  possession 
shall  govern.5*  Twenty  years'  open  occupation  of  a  mining  claim 
under  color  of  title  will  entitle  a  plaintiff  to  enjoin  a  location  of  the 
same  ground  by  defendant,  even  though  no  evidence  is  introduced 
to  show  the  devolution  of  title  from  the  original  locator  to  the  plain- 
tiff.55 In  most  mining  law  states  is  seems  that  a  much  shorter  time 
will  suffice.56 

But  the  running  of  the  statute  of  limitations  will  be  interrupted  by 
the  issuance  of  patent  to  the  record  owner.57  Any  adverse  possession 

Pac.  537,  51  L.  R.  A.  930 ;  Lavagnino  v.  Uhlig,  26  Utah,  1,  71  Pac.  1046,  99  Am. 
St.  Rep.  808;  Four  Hundred  &  Twenty  Min.  Co.  v.  Bullion  Min.  Co.,  9  Nev. 
240 ;  Bradley  v.  Johnson,  11  Idaho,  689,  83  Pac.  927 ;  Buffalo  Zinc  &  Copper 
Co.  v.  Crump,  70  Ark.  525,  69  S.  W.  572,  91  Am.  St  Rep.  87.  See  Shafer  v. 
Constans,  3  Mont.  369.  Where  a  purchaser  of  mining  claims  has  held  them 
adversely  for  the  period  of  limitation,  it  will  be  presumed  against  an  adverse 
claimant  that  the  claims  were  regularly  located.  BUFFALO  ZINC  &  COP- 
PER CO.  v.  CRUMP,  supra. 

53  cieary  v.  Skiffich,  28  Colo.  362,  65  Pac.  59,  89  Am.  St.  Rep.  207;    Mc- 
Gowan  v.  Maclay,  16  Mont.  234,  40  Pac.  602. 

54  See  Barklage  v.  Russell,  29  Land  Dec.  Dep.  Int.  401 ;  Belk  v.  Meagher 
104  U.  S.  279,  287,  26  L.  Ed.  735 ;    Four  Hundred  &  Twenty  Min.  Co.  v.  Bul- 
lion Min.  Co.,  9  Nev.  240;    Altoona  Quicksilver  Min.  Co.  v.  Integral  Quick- 
silver Min.  Co.,  114  Cal.  100,  45  Pac.  1047;    Buffalo  Zinc  £  Copper  Co.  v. 
Crump,  70  Ark.  525,  69  S.  W.  572,  91  Am.  St.  Rep.  87;    Risen  v.  Wiseman, 
36  Or.  484,  59  Pac.  1111,  78  Am.  St.  Rep.  783;    Harris  v.  Equator  Min.  & 
S.  Co.  (C.  C.)  8  Fed.  863.     See,  also,  Four  Hundred  &  Twenty  Min.  Co.  v.  Bul- 
lion Min.  Co.,  3  Sawy.  (U.  S.)  634,  Fed.  Cas.  No.  4,989. 

55  RISCH  v.  WISEMAN,  36  Or.  484,  59  Pac.  1111,  78  Am.   St.  Rep.  783. 
See  Minnesota  &  Montana  Land  &  Improvement  Co.  v.  Brasier,  18  Mont.  444, 
45  Pac.  632. 

ss  Seven  years  in  Colorado.  Eberville  v.  Leadville  Tunneling,  Mining  & 
Drainage  Co.,  28  Colo.  241,  64  Pac.  200.  (Under  one  statute  it  was  five  years. 
Glacier  Mountain  Silver  Min.  Co.  v.  Willis,  127  U.  S.  472,  8  Sup.  Ct.  1214,  32 
L.  Ed.  172.)  One  year  in  Montana  Horst  v.  Shea,  23  Mont.  390,  59  Pac.  304. 
Two  years  in  Nevada.  South  End  Mining  Co.  v.  Tinney,  22  Nev.  19,  35  Pnc. 
89 ;  Id.,  22  Nev.  221,  38  Pac.  401.  Seven  years  in  Utah.  Lavagnino  v.  Uhlig, 
26  Utah,  1,  71  Pac.  1046,  99  Am.  St.  Rep.  808.  Possession  for  the  statutory 
period  does  not  of  course  relieve  the  possessor  from  the  annual  labor  re- 
quirement and  upon  his  failure  to  perform  the  annual  labor  the  claim  may 
be  relocated.  Upton  v.  Santa  Rita  Min.  Co.  (N.  M.)  89  Pac.  275. 

57  TYEE  CONSOL.  MIN.  CO."  v.  LANGSTEDT,  136  Fed.  124,  69  C.  C.  A. 
548;  Tyee  Consol  Min.  Co.  v.  Jennings,  137  Fed.  803,  70  C.  C.  A.  393. 


§  153)         ADVERSE   POSSESSION — STATUTES   OF   LIMITATION.  525 

must  either  be  asserted  in  the  patent  proceedings,  by  adverse  claim 
and  suit,  or  else  must  date  from  the  issuance  of  patent  or  later.58 
While  a  receiver's  receipt  vests  in  the  patent  applicant  the  equitable 
title,  it  is  held  that  the  statute  of  limitations  does  not  run  until  pat- 
ent actually  issues.69 

What  constitutes  adverse  possession  of  mining  claims  is  the  same 
as  what  constitutes  it  in  other  real  property.  Secret  underground 
mining  will  not  serve;60  but  such  open,  continuous,  and  exclusive 
acts  of  possession  and  of  mining  as  the  nature  of  the  business  and 
customs  of  the  country  call  for  will  suffice.61  Where  the  estate  in 
the  minerals  has  been  severed  from  that  in  the  surface,  adverse 
possession  of  the  surface  does  not  carry  with  it  adverse  possession 
of  the  minerals.62 

One  tenant  in  common  cannot  get  title  by  adverse  possession 
against  his  co-tenants  by  taking  exclusive  possession  of  the  property, 
without  notice  to  his  co-tenants  of  a  hostile  claim.63 

5  &  SOUTH  END  MINING  CO.  v.  TINNEY,  22  Nev.  221,  38  Pac.  401; 
Mayer  v.  Carothers,  14  Mont.  274,  36  Pac.  182;  Clark  v.  Barnard,  15  Mont. 
176,  38  Pac.  834. 

59  Id.  See  REDFIELD  v.  PARKS,  132  U.  S.  239,  10  Sup.  Ct  83,  33  L. 
Ed.  327.  But  see  Hamilton  v.  Southern  Nev.  Gold  &  Silver  Min.  Co.  (C.  C.) 
33  Fed.  562. 

eo  Badger  Gold  Min.  &  Mill.  Oo.  v.  Stockton  Gold  &  Copper  Min.  Co.  (C. 
C.)  139  Fed.  838 ;  Pardee  v.  Murray,  4  Mont.  234,  2  Pac.  16 ;  Pierce  v.  Bar- 
ney, 209  Pa.  132,  58  Atl.  152;  Davis  v.  Shepherd,  31  Colo.  141,  72  Pac.  57. 
See  Last  Chance  Min.  Co  v.  Bunker  Hill  &  S.  Mining  &  Concentrating  Co., 
131  Fed.  579,  66  C.  C.  A.  299 ;  Plummer  v.  Hillside  Coal  &  Iron  Co.,  104  Fed. 
208,  43  C.  C.  A.  490. 

«i  Stephenson  v.  Wilson,  37  Wis.  482;  Hamilton  v.  Southern  Nev.  Gold 
&  Silver  Min.  Co.  (C.  C.)  33  Fed.  562;  Four  Hundred  &  Twenty  Min.  Co.  v. 
Bullion  Min.  Co.,  9  Nev.  240.  Adverse  possession  of  a  mining  claim  cannot 
extend  to  a  portion  of  a  vein  apexing  outside  of  the  claim,  for  that  is  no 
part  of  it.  Davis  v.  Shepherd,  31  Colo.  141,  72  Pac.  57.  For  instances  of 
insufficient  adverse  possession,  see  Oostello  v.  Muheim  (Ariz.)  84  Pac.  906; 
Gill  v.  Fletcher,  74  Ohio  St.  295,  78  N.  E.  433,  113  Am,  St.  Rep.  962 ;  Wal- 
lace v.  Elm  Grove  Coal  Co.,  58  W.  Va.  449,  52  S.  E.  485.  Lessees  of  mining 
ground  in  possession,  who  oust  their  lessor  by  relocating  the  ground  and  set- 
ting up  an  adverse  title  in  themselves,  forfeit  all  rights  under  the  lease. 
Silver  City  Gold  &  Silver  Min.  Co.  v.  Lowry,  19  Utah,  334,  57  Pac.  11. 

62CATLIN  COAL  CO.  v.  LLOYD,  176  111.  275,  52  N.  E.  144;  Id.,  180  111. 
398,  54  N.  E.  214,  72  Am.  St.  Rep.  216 ;  Caldwell  v.  Copeland,  37  Pa.  427,  78 
Am.  Dec.  436 ;  Armstrong  v.  Caldwell,  53  Pa.  284 ;  ALGONQUIN  COAL  CO. 
v.  NORTHERN  COAL  &  IRON  CO.,  162  Pa.  114,  29  Atl.  402.  See  Lulay  v. 
Barnes,  172  Pa.  331,  34  Atl.  52.  Compare  Yellow  Poplar  Lumber  Co.  v. 
Thompson's  Heirs  (Va.)  62  S.  E.  358. 

«3  Faubel  v.  McFarland,  144  Cal.  717,  78  Pac.  261. 


526  WATER   RIGHTS   AND   DRAINAGE.  (Ch.  28 


CHAPTER  XXVIII. 
WATER  RIGHTS  AND  DRAINAGE. 

154-155.    The    Appropriation    of    Water    Doctrine. 
156-157.     Pollution  of  Water— Debris. 
158.  Drainage. 

THE  APPROPRIATION  OF  WATER  DOCTRINE. 

154.  The  appropriation  of  water  doctrine  prevails  in  whole  or  in  part 

in  the  several  mining  law  states  and  territories. 

155.  The  appropriation  of  water  is  regulated  to-day  by  local  statutes, 

and  the  usual  steps  in  an  appropriation  are:  (1)  The  posting 
and  record  of  a  notice  of  appropriation;  (2)  the  reasonably 
diligent  diversion  of  the  water;  and  (3)  the  application  of 
the  water  within  a  reasonable  time  to  a  beneficial  use.  Min- 
ing is  a  beneficial  use,  and  appropriators  take  in  the  order  of 
appropriation. 

It  so  happens  that  the  leading  mining  law  states  and  territories 
are  those  where  the  appropriation  of  water  doctrine  in  whole  or  in 
part  prevails.  The  development  of  the  appropriation  of  water  doc- 
trine was  contemporaneous  with  that  of  the  mining  law,  because  it 
met  a  mining  need.  As  Mr.  Justice  Field  pointed  out  in  an  early  case, 
"the  mines  could  not  be  worked  without  water.  Without  water  the 
gold  would  remain  forever  buried  in  the  earth  or  rock.  To  carry 
water  to  mining  localities,  when  they  were  not  on  the  banks  of  a 
stream  or  lake,  became,  therefore,  an  important  and  necessary  business 
in  carrying  on  mining.  Here,  also,  the  first  appropriator  of  water 
to  be  conveyed  to  such  localities  for  mining  or  other  beneficial  pur- 
poses was  recognized  as  having,  to  the  extent  of  actual  use,  the  better 
right.  The  doctrines  of  the  common  law  respecting  the  rights  of 
riparian  owners  were  not  considered  as  applicable,  or  only  in  a  very 
limited  degree,  to  the  condition  of  miners  in  the  mountains.  The  wa- 
ters of  rivers  and  lakes  were  consequently  carried  great  distances  in 
ditches  and  flumes,  constructed  with  vast  labor  and  enormous  expend- 
itures of  money,  along  the  sides  of  mountains,  and  through  canons 
and  ravines,  to  supply  communities  engaged  in  mining,  as  well  as  for 
agriculturalists  and  ordinary  consumption.  Numerous  regulations 
were  adopted  or  assumed  to  exist,  from  their  obvious  justness,  for 
the  security  of  these  ditches  and  flumes,  and  the  protection  of  rights 
of  water,  not  only  between  different  appropriators,  but  between  them 
and  the  holders  of  mining  claims.  These  regulations  and  customs 


§§  154r-155)  APPROPRIATION   OF   WATER   DOCTRINE.  527 

were  appealed  to  in  cohtroversies  in  the  state  courts,  and  received 
their  sanction;  and  properties  to  the  value  of  many  millions  rested 
upon  them."  x 

Starting  as  it  did  at  a  time  when  the  federal  government  owned 
both  the  land  and  the  water  which  flowed  over  the  land,  and  fostered 
as  it  was  by  the  acquiescence  of  the  federal  government  in  the  re- 
pudiation by  the  settlers  of  the  riparian  right  doctrine,2  the  appropria- 
tion of  water  doctrine  was  firmly  established  before  the  riparian  right 
doctrine  could  give  effective  resistance.  In  the  act  of  1866  the  ap- 
propriation of  water  doctrine  was  expressly  sanctioned  by  Congress.3 
By  the  subsequent  act  of  1870  all  patents  were  to  be  granted  and  pre- 
emptions and  homesteads  allowed  subject  to  all  vested  water  rights 
and  to  all  ditch  and  reservoir  rights  connected  with  such  water  rights.4 
The  acts  of  1866  and  of  1870  were  held  to  be  "rather  the  voluntary 
recognition  of  a  pre-existing  right  of  possession,  constituting  a  valid 
claim  to  its  continued  use,  than  the  establishment  of  a  new  one" ; 5 
but  they  at  least  expressly  sanctioned  what  before  had  rested  only 
on  implication. 

The  California  System. 

Despite  the  sanction  given  to  the  appropriation  of  water  doctrine 
by  the  federal  government,  however,  the  mining  law  states  of  Cal- 
ifornia, North  Dakota,  Oregon,  South  Dakota,  Washington,  and  prob- 
ably, also,  Montana,  have  only  in  part  adopted  it.  They  have  what 
is  known  as  the  "California  System."  e  Appropriation  of  water  may 
there  be  made  prior  to  the  issuance  of  a  federal  patent  to  riparian  land, 
and  the  patent  will  therefore  be  subject  to  prior  appropriations;  but, 
if  the  patentee  chooses  to  stand  on  his  rights  as  a  riparian  owner,  no 
appropriation  subsequent  to  his  patent  that  will  diminish  his  riparian 
rights  can  be  made.7  In  such  states  it  is  of  the  first  importance  to 
determine  when  the  patent  takes  effect  within  this  rule,  and  it  seems 

1  JENNISON  v.  KIRK,  98  U.  S.  453,  458,  459,  25  L.  Ed.  240. 

2  ATCHISON  v.  PETERSON,  20  Wall.  (U.  S.)  507,  22  L.  Ed.  414 
s  Rev.  St.  U.  S.  §  2339  (U.  S.  Comp.  St.  1901,  p.  1437). 

*  Rev.  St.  U.  S.  §  2340  (U.  S.  Comp.  St.  1901,  p.  1437). 

6BRODER  v.  NATOMA  WATER  &  MINING  CO.,  101  U.  S.  274  25  L 
Ed.  790. 

e  Long  on  Irrigation,  §  6 ;  Mills'  Irrigation  Manual,  §  20 ;  Weil's  Water 
Rights  in  the  Western  States  (2d  Ed.)  §  22. 

7  LUX  v.  HAGGIN,  69  Cal.  255,  4  Pac.  919,  10  Pac.  674;  Hargrave  v.  Cook, 
108  Cal.  72,  41  Pac.  18,  30  L.  R.  A.  390;  BROWN  v.  BAKER,  39  Or.  66,  65 
Pac.  799,  66  Pac.  193;  Carson  v.  Gentner,  33  Or.  512,  52  Pac.  506,  43  L.  R. 
A.  130 ;  BENTON  v.  JOHNCOX,  17  Wash.  277,  49  Pac.  495,  39  L.  R.  A.  107, 
61  Am.  St.  Rep.  912 ;  SMITH  v.  DENNIFF,  24  Mont  20,  60  Pac.  398,  81  Am' 
St.  Rep.  408.  See  CRUSE  v.  McCAULEY  (C.  C.)  96  Fed.  369. 


528  WATER   RIGHTS   AND   DRAINAGE.  (Ch.    28 

clear  that  it  takes  effect  by  relation  from  the  time  of  the  initial  step 
in  the  acquisition  of  title.8 

The  Colorado  System. 

But  in  Arizona,  Colorado,  Idaho,  Nevada,  New  Mexico,  Utah,  and 
Wyoming  there  are  no  riparian  rights,  and  in  such  states  and  terri- 
tories the  appropriation  doctrine  of  water  rights  is  supreme,  wheth- 
er the  appropriation  is  made  before  patent  to  the  land  on  the  banks 
of  the  stream  or  after  such  patent.9  The  system  of  water  rights 
prevailing  in  these  states  and  territories  is  known  as  the  "Colorado 
System."  10 

The  Method  of  Appropriating  Water. 

While  it  is  beyond  the  scope  of  this  book  to  go  into  a  detailed 
discussion  of  the  appropriation  of  water  doctrine,  a  word  must  be 
said  about  the  method  of  appropriating  water.  Appropriations  were 
originally  governed  by  local  customs  and  rules,  but  to-day  they  are 
regulated  by  statute.  Prior  to  statute  the  way  to  appropriate  was  to 
make  a  diversion  of  the  water  with  an  intent  to  apply  it  to  beneficial 
uses,  and  then  to  follow  up  that  diversion  by  actually  applying  it  with 
reasonable  diligence  to  such  beneficial  uses.  If  the  diversion  was  thus 
followed  up,  the  law  would  date  the  right  to  appropriate  the  water 
by  relation  as  of  the  time  when  the  work  of  building  the  dam  or  ditch 
to  divert  the  water  began.11  But  since  the  statutes  have  prescribed, 
in  addition  to  the  foregoing. steps,  the  posting  and  record  of  a  notice, 
and  have  provided  that  a  compliance  with  the  statute  shall  cause  the 
water  right  to  date  from  the  posting  of  the  notice,  the  courts  are 

s  STURR  v.  BECK,  133  U.  S.  541,  10  Sup.  Ct.  350,  33  L.  Ed.  761 ;  Lone 
Tree  Ditch  Co.  v.  Cyclone  Ditch  Co.,  15  S.  D.  519,  91  N.  W.  352 ;  McGuire  v. 
Brown,  106  Cal.  660,  39  Pac.  1060,  30  L.  R.  A.  384;  Faull  v.  Cooke,  19  Or. 
455,  26  Pac.  662,  20  Am.  St.  Rep.  836;  BENTON  v.  JOHNCOX,  17  Wash. 
277,  49  Pac.  495,  39  L.  R.  A.  107,  61  Am.  St.  Rep.  912. 

»  COFFIN  v.  LEFT  HAND  DITCH  CO.,  6  Colo.  443 ;  Jones  v.  Adams,  19 
Nev.  78,  6  Pac.  442,  3  Am.  St.  Rep.  788 ;  Reno  Smelting,  Milling  &  Reduction 
Works  v.  Stevenson,  20  Nev.  269,  21  Pac.  317,  4  L.  R.  A.  60,  19  Am.  St.  Rep. 
364.  See  Hammond  v.  Rose,  11  Colo.  524,  19  Pac.  466,  7  Am.  St.  Rep.  258. 
And  this  is  true  even  though  the  patent  antedates  the  act  of  1866.  Twaddle 
v.  Winters  (Nev.)  85  Pac.  280.  The  right  of  a  state  to  adopt  the  appropria- 
tion of  water  doctrine  as  a  system  is  recognized  in  UNITED  STATES  v. 
RIO  GRANDE  DAM  &  IRRIGATION  CO.,  174  U.  S.  690,  19  Sup.  Ct  770,  43 
L.  Ed.  1136.  See  STATE  OF  KANSAS  v.  STATE  OF  COLORADO,  185  U. 
S.  125,  22  Sup.  Ct.  552,  46  L.  Ed.  838;  Id.,  206  U.  S.  46,  27  Sup.  Ct.  655,  51 
L.  Ed.  956. 

10  Mills'   Irrigation  Manual,   §   21;   Weil's   Water  Rights  in   the  Western 
States  (2d  Ed.)  §  34. 

11  Irwin  v.  Strait,  18  Nev.  436,  4  Pac.  1215;    Osgood  v.  El  Dorado  Water 
&  Deep  Gravel  Min.  Co.,  56  Cal.  571. 


§§  154-155)         APPROPRIATION   OF  WATER   DOCTRINE.  529 

inclined  to  say  that  there  shall  be  no  relation  back  in  favor  of  one, 
however  diligent,  who  does  not  comply  with  the  statute.  An  ap- 
propriation may  still  be  made  without  complying  with  the  statutory 
requirements  as  to  the  posting  and  recording  of  a  notice,12  because 
the  actual  application  of  the  water  to  a  beneficial  use  is  the  best  .kind 
of  notice  of  an  appropriation; 13  but  such  an  appropriation  can  no 
longer  have  the  benefit  of  that  relation  back  to  which  it  was  entitled 
before  there  was  any  statute.1*  Even  under  the  statutes  it  still  re- 
mains true  that  to  constitute  an  appropriation  there  must  be  an  ap- 
propriator  who,  with  the  intent  to  apply  the  water  to  some  beneficial 
use,  diverts  it  and  then  within  a  reasonable  time  actually  applies  it 
to  that  or  an  equivalent  use.15  Such  an  appropriation  of  water  con- 
stitutes a  water  right  which  has  priority  over  subsequent  appropria- 
tions. Such  water  right  is  property,  t  which  in  a  proper  case  may  be 

i2DE  NECOCHEA  v.  CURTIS,  80  Gal.  397,  20  Pac.  563,  22  Pac.  198; 
Senior  v.  Anderson,  115  Cal.  496,  47  Pac.  454.  See  Murray  v.  Tingley,  20 
Mont.  260,  50  Pac.  723. 

is  Wells  v.  Mantes,  99  Cal.  583,  34  Pac.  324.  "The  term  'appropriation'  is 
often  loosely  used  by  the  authorities,  and  in  general  it  is  used  with  reference 
to  a  claim  to  the  use  of  the  water  of  a  public  stream  from  the  time  of  the 
inception  of  the  right,  at  all  the  intermediate  stages,  and  down  to  the  time 
when  the  last  act  is  accomplished  by  which  the  right  is  finally  and  complete- 
ly secured.  An  appropriation  proper  is  not  made  until  there  has  been  an 
actual  application  of  the  water  claimed  to  some  beneficial  purpose  or  some 
useful  industry.  All  rights  acquired  prior  to  this  time,  at  whatsoever  step  in 
the  process,  amount  simply  to  a  claim  of  an  appropriation ;  but  they  are  none 
the  less  rights  and  privileges  which  may  be  asserted  and  maintained  against 
all  persons  not  entitled  to  priority  in  rights  and  privileges  of  like  nature. 
*  *  *  So  that  actual  user  for  a  beneficial  purpose  is  the  true  and  only  final 
test  touching  the  question  whether  a  party's  claim  has  ripened  into  a  valid 
appropriation.  There  can  be  no  constructive  appropriation,  nor  can  any  step 
required  to  be  taken  throughout  the  whole  project  and  course  of  water  ap- 
propriations be  constructively  accomplished.  It  is  the  actual  physical  per- 
formance of  every  essential  requisite,  from  the  time  the  purpose  is  definitely 
conceived  down  to  the  ultimate  user  of  the  water  in  connection  with  the  ad- 
vancement -of  some  useful  and  beneficial  industry,  that  matures  and  finally 
accomplishes  the  'appropriation.'"  NEVADA  DITCH  CO.  v.  BENNETT,  30 
Or.  59,  89-91,  45  Pac.  472,  60  Am.  St.  Rep.  777. 

i*  MURRAY  v.  TINGLEY,  20  Mont.  260,  50  Pac.  723 ;  PYKE  v.  BURN- 
SIDE,  8  Idaho,  487,  69  Pac.  477.  See  Sand  Point  Water  &  Light  Co.  v.  Pan- 
handle Development  Co.,  11  Idaho,  405,  83  Pac.  347.  WMle  this  result  is 
based  on  the  supposed  intent  of  the  Legislature  in  passing  the  statute,  it 
would  seem  as  if  nothing  short  of  express  legislative  prohibition  to  that  effect 
should  be  allowed  to  prevent  that  relation  back  which,  but  for  the  statute, 
would  have  existed.  See  MOYER  v.  PRESTON,  6  Wyo.  308,  44  Pac.  845, 
71  Am.  St.  Rep.  914. 

IB  CARTER  v.  WAKEMAN,  42  Or.  147,  70  Pac.  393. 
CosT.MiN.L.— 34 


530  WATER   RIGHTS   AND    DRAINAGE.  (Ch.  28 

alienated.18     The  different  appropriators  take  in  the  order  of  their 
appropriations. 

Mining  as  a  Beneficial  Use. 

That  the  use  of  water  in  mining  is  a  beneficial  application  of  it 
within  the  appropriation  law  doctrine  has  never  been  doubted.  Be- 
cause mining  was  the  very  beneficial  use  which  first  called  the  appro- 
priation of  water  doctrine  into  existence,  it  has,  indeed,  been  especial- 
ly favored.  An  extreme  instance  of  such  favoritism  is  found  in  the 
case  where  it  was  held  that  a  placer  location  which  covered  both  banks 
of  a  stream  operated  as  an  appropriation  of  all  the  waters  of  the 
stream  so  far  as  they  were  necessary  for  working  the  claim.17  That 
decision  must  surely  be  qualified  by  letting  the  appropriation  be  ef- 
fective only  if  before  third  parties  appropriate  the  water  it  is  ap- 
plied with  reasonable  diligence  to  placer  mining  purposes.18  Another 
case  of  favoritism  to  the  mine  owner  is  the  rule  that  water  encounter- 
ed in  mining  and  allowed  to  escape  through  a  tunnel  cannot  be  ap- 
propriated in  such  a  way  as  to  prevent  the  mine  owner  from  divert- 
ing it  to  his  own  uses  before  it  leaves  the  mining  claim.19  But,  in 
general,  an  appropriation  of  water  for  mining  purposes  or  flowing 
from  mining  claims  is  governed  by  the  same  rules  as  an  appropria- 
tion of  water  for  other  purposes  or  flowing  from  other  property. 

i«  In  Colorado  a  water  right  is  realty.  Wyatt  v.  Larimer  &  Weld  Irriga- 
tion Co.,  18  Colo.  298,  33  Pac.  144,  36  Am.  St.  Rep.  280.  But  it  does  not 
pass  as  appurtenant  to  land  unless  the  terms  of  the  deed  or  extraneous  evi- 
dence show  affirmatively  that  such  was  the  intention  of  the  parties.  Bes- 
semer Irrigating  Ditch  Co.  v.  Woolley,  32  Colo.  437,  76  Pac.  1053,  105  Am. 
St.  Rep.  91.  In  Utah  it  passes,  unless  expressly  reserved.  Fisher  v.  Bounti- 
ful City,  21  Utah,  29,  59  Pac.  520.  See,  also,  Frank  v.  Hicks,  4  Wyo.  502,  35 
Pac.  475,  1025 ;  Turner  v.  Oole,  31  Or.  154,  49  Pac.  971 ;  Tucker  v.  Jones,  8 
Mont.  225,  19  Pac.  571. 

i?  SCHWAB  v.  BEAM  (C.  C.)  86  Fed.  41.  See,  also,  Davis  v.  Gale,  32  Cal. 
26,  91  Am.  Dec.  554,  where  one  who  appropriated  water  for  a  particular  min- 
ing claim,  which  he  worked  out  and  abandoned,  was  allowed  to  apply  the  wa- 
ter to  still  another  claim  in  priority  to  one  who  appropriated  before  the 
first  claim  was  worked  out. 

isRODGERS  V.  PITT  (C.  C.)  129  Fed.  932.  The  case  of  SCHWAB  v. 
BEAM  is  contra.  The  establishment  of  a  military  reservation  upon  a  stream 
does  not  prevent  an  appropriation  of  water  from  the  stream  which  does  not 
interfere  with  a  previous  appropriation  for  the  use  of  such  reservation. 
Krall  v.  United  States,  79  Fed.  241,  24  C.  C.  A.  543. 

10  CRESCENT  M1N.  CO.  v.  SILVER  KING  MIN.  CO.,  17  Utah,  444,  54 
Pac.  244,  70  Am.  St  Rep.  810;  CARDELLI  v.  COMSTOCK  TUNNEL  CO.,  2<3 
Nev.  284,  66  Pac.  950.  See  Fairplay  Hydraulic  Min.  Co.  v.  Weston,  29  Colo. 
125,  67  Pac.  160;  Ripley  v.  Park  Center  Land  &  Water  Co.,  40  Colo.  129,  90 
Pac.  75. 


§§  156-157)  POLLUTION   OF   WATER — DEBRIS.  531 


POLLUTION  OF  WATER— DEBRIS. 

156.  An  appropriates  of  water  may  impair  the  quality   of  the  wa- 

ter in  the  stream  only  so  far  as  may  be  necessary  to  its  ap- 
plication to  his  beneficial  use,  and  then  not  to  an  extent 
unreasonably  to  interfere  with,  the  fair  enjoyment  of  the 
water  by  other  appropriators. 

157.  In  California  a  federal  act  has  created  a  Debris  Commission  to. 

license  and  regulate  placer  mining  on  certain  rivers,  where 
such  mining  was  covering  farms  and  orchards  with  ruinous 
debris. 

Because  in  appropriation  law  states  one  beneficial  use  is  as  good  as 
another,  and  because  the  application  of  water  to  mining  uses  neces- 
sarily makes  the  undissipated  part  returned  to  the  stream  deteriorate 
more  or  less  the  quality  of  the  water  in  the  stream,  the  appropriation 
law  states  have  inevitably  come  to  look  at  the  pollution  of  the  water 
by  a  prior  mining  appropriator  with  more  indulgence  than  was  pos- 
sible for  an  English  court.  The  common-law  right  of  a  riparian 
proprietor  to  have  the  water  come  down  to  him  substantially  un- 
diminished  in  quantity  and  unimpaired  in  quality  has  been  changed 
in  those  states  to  a  right  on  the  part  of  a  subsequent  appropriator  to 
have  the  prior  appropriator  diminish  the  quantity  of  water  coming 
down  and  impair  its  t  quality  only  so  far  as  may  be  the  natural  and 
reasonably  necessary  consequence  of  its  beneficial  use  by  the  prior 
appropriator.20  A  prior  appropriator  down  the  stream  can,  of  course 
insist  that  the  subsequent  appropriator  up  the  stream  treat  him  with 
even  more  consideration  than  that.21  Even  in  the  appropriation  law 
states,  however,  a  beneficial  user  of  water  may  not  taint  the  water  by 
putting  in  poisonous  chemicals;  22but,  short  of  that,  the  question  has 
been  one  of  fact  as.  to  whether  the  deterioration  of  the  quality  of  the 
water  is  an  unreasonable  interference  with  the  fair  enjoyment  of  the 
water  by  other  appropriators.23 

20  ALDER  GULCH  CON.  MIN.  CO.  v.  HAYES,  6  Mont.  31,  9  Pac.  581; 
Suffolk  Gold  Mining  &  Milling  Co.  v.  San  Miguel  Consolidated  Mining  &  Mill- 
ing Co.,  9  Colo.  App.  407,  48  Pac.  828.     See  criticism  of  the  decree  in  the 
last  case  in  2  Lindley  on  Mines  (2d  Ed.)  §  841.     But  see  Otaheite  Gold  & 
Silver  Min.  &  Mill.  Co.  v.  Dean  (C.  C.)  102  Fed.  929. 

21  Phoanix  Water  Co.  v.  Fletcher,  23  Cal.  481 ;    Wixon  v.  Bear  River  and 
Auburn  Water  &  Mining  Co.,  24  Oal.  367,  85  Am.  Dec.  69.     But  see  Atchison 
v.  Peterson,  1  Mont.  561 ;   Id.,  20  Wall.  (U.  S.)  507,  22  L.  Ed.  414. 

22  Crane  v.  Winsor,  2  Utah,  248. 

23  MONTANA  CO.  v.  GEHRING,  75  Fed.  384,  21  C.  C.  A.  414;    Otaheite 
Gold  &  Silver  Min.  &  Mill.  Co.  v.  Dean  (C.  C.)  102  Fed.  929.     Even  in  Penn- 
sylvania, where  the  riparian  right  doctrine  exists,  the  doctrine  prevailing  in 


532  WATER   RIGHTS   AND   DRAINAGE.  (Ch.  28 

Debris. 

In  a  state  where  placer  mining  is  a  leading  industry,  the  fact  that 
tailings  are  carried  into  an  irrigation  ditch  and  upon  the  land  below 
because  of  the  operation  of  a  placer  mine  will  not  justify  an  injunc- 
tion, if  the  damage  to  the  lower  proprietor  is  nominal  or  slight.24  The 
fact  that,  in  addition  to  polluting  the  running  water,  the  appropriator 
has  caused  debris  to  be  deposited  on  the  lower  proprietor's  land,  is 

appropriation  law  states  has  practically  been  adopted  with  reference  to  min- 
ing. PENNSYLVANIA  COAL  CO.  v.  SANDERSON,  113  Pa.  126,  6  Atl.  453, 
57  Am.  Rep.  445.  In  that  case,  after  an  extended  litigation  (SANDERSON 
v.  PENNSYLVANIA  COAL  CO.,  86  Pa.  401,  27  Am.  Rep.  711;  PENNSYL- 
VANIA COAL  CO.  v.  SANDERSON,  94  Pa.  302,  39  Am.  Rep.  785 ;  Sander- 
son v.  Pennsylvania  Coal  Co.,  102  Pa.  370),  it  was  finally  decided  that  one 
who,  in  the  ordinary  and  usual  manner,  operates  a  coal  mine,  may  so  pump 
the  water  which  percolates  into  his  mine  that  it  will  drain  into  the  stream 
which  forms  the  natural  drainage  for  that  region,  even  though  the  quantity 
of  the  water  may  thereby  be  increased  and  its  quality  may  be  so  affected 
that  the  water  in  the  stream  is  rendered  totally  unfit  for  the  domestic  pur- 
poses of  lower  proprietors.  In  a  later  case  the  Pennsylvania  court  points  out 
that  the  rule  thus  laid  down  does  not  go  beyond  the  proper  use  of  one's  own 
land  and  unavoidable  damages  to  the  lower  proprietor.  Collins  v.  Chartiers 
Gas  Co.,  131  Pa.  143,  156,  18  Atl.  1012,  6  L.  R.  A.  280,  17  Am.  St.  Rep.  791. 
In  Elder  v.  Lykens  Valley  Coal  Co.,  157  Pa.  490,  27  Atl.  545,  37  Am.  St.  Rep. 
742,  it  was  held  that  a  mineowner  who  deposits  culm  or  refuse  from  his  mine 
in  a  stream  or  in  a  place  where  ordinary  floods  will  carry  it  down  upon  the 
land  of  another  is  liable  to  that  other  for  the  damages  caused  thereby.  In 
Hindson  v.  Markle,  171  Pa.  138,  33  Atl.  74,  which  followed  Elder  v.  Lykens 
Valley  Coal  Co.,  the  case  of  Pennsylvania  Coal  Co.  v.  Sanderson,  113  Pa.  126, 
6  Atl.  453,  57  Am.  St.  Rep.  445,  is  distinguished  on  the  ground  that  there  was 
in  that  case  no  deposit  of  any  foreign  substance  on  the  land  of  plaintiff,  and 
that,  moreover,  the  case  presented  the  pollution  of  a  stream  from  "the  mere 
flowage  of  natural  water  which  was  discharged  by  the  natural  and  irresistible 
forces  necessarily  developed  in  the  act  of  mining  in  a  perfectly  lawful 
manner."  Compare  Roaring  Creek  Water  Co.  v.  Anthracite  Coal  Co.  of  Pitts- 
burg,  212  Pa.  115,  61  Atl.  811. 

24  McCAULEY  v.  McKEIG,  8  Mont.  389,  21  Pac.  22.  See,  also,  Fitzpatrick 
v.  Montgomery,  20  Mont.  181,  50  Pac.  416,  63  Am.  St.  Rep.  622 ;  Edwards  v. 
Allouez  Min.  Co.,  38  Mich.  46,  31  Am.  Rep.  301.  Compare,  also,  the  case  where 
the  erection  of  dams  necessary  for  working  the  mine  for  which  water  was 
appropriated  caused  the  flooding  of  adjoining  land.  Stone  v.  Bumpus.  46 
Cal.  218 ;  Jones  v.  Robertson,  116  111.  543,  6  N.  E.  890,  56  Am.  Rep.  786.  But, 
where  a  state  statute  provides  that  the  miner  must  take  care  of  his  tailings 
on  his  own  ground,  an  injunction  will  issue  against  the  washing  down  of  tail- 
ings dumped  by  defendant  on  his  own  ground  and  not  looked  after.  Fuller 
v.  Swan  River  Placer  Min.  Co.,  12  Colo.  12,  19  Pac.  836.  A  placer  mine  owner 
may  of  course  be  enjoined  from  so  using  the  waters  of  the  stream  as  to  ren- 
der them  unfit  for  use  in  supplying  the  inhabitants  of  a  city  for  domestic 
purposes  so  long  as  the  injunction  does  not  interfere  with  the  placer  mine 
owner's  use  of  the  water  in  the  customary  manner.  Travis  Placer  Min.  Co. 
v.  Mills,  94  Fed.  909,  37  C.  C.  A.  536. 


§§  156-157)  POLLUTION   OF   WATER — DEBRIS.  533 

however,  in  all  jurisdictions,  a  clear  violation  of  the  lower  proprietor's 
rights,25  and  in  a  given  case  may  be  a  nuisance,26  and  of  course  may 
call  for  and  receive  injunctive  relief. 

Because  in  California  hydraulic  placer  mining  not  only  ruined  farms 
and  orchards,  but  threatened  to  interfere  with  the  navigability  of  the 
San  Joaquin  and  the  Sacramento  rivers,  the  courts  enjoined  such  min- 
ing,27 and  the  United  States  government,  by  the  act  of  March  1, 

2  B  WOODRUFF  v.  NORTH  BLOOMFIELD  GRAVEL  MIN.  CO.  (C.  C.)  18 
Fed.  753;  Hardt  v.  Liberty  Hill  Consolidated  Mining  &  Water  Co.,  27  Fed. 
788;  Nelson  v.  O'Neal,  1  Mont.  284;  FITZPATRIOK  v.  MONTGOMERY,  20 
Mont  181,  50  Pac.  416,  63  Am.  St.  Rep.  622 ;  People  v.  Gold  Run  Ditch  &  Min. 
Co.,  66  Cal.  138,  4  Pac.  1152,  56  Am.  Rep.  80;  Hobbs  v.  Amador  &  Sacra- 
mento C.  Co.,  66  Cal.  161,  4  Pac.  1147;  Salstrom  v.  Orleans  Bar  Gold  Min. 
Co.  (Cal.)  96  Pac.  294;  CARSON  v.  HAYES,  39  Or.  97,  65  Pac.  814;  York 
v.  Davidson,  39  Or.  81,  65  Pac.  819;  Tennessee  Coal,  Iron  &  R.  Co.  v.  Hamil- 
ton, 100  Ala.  252,  14  South.  167,  46  Am.  St.  Rep.  48;  Threatt  v.  Brewer  Min. 
Co.,  49  S.  C.  95,  26  S.  E.  970.  See  County  of  Yuba  v.  Cloke,  79  Cal.  239,  21 
Pac.  740;  Otaheite  Gold  &  Silver  Min.  &  Mill.  Co.  v.  Dean  (C.  C.)  102  Fed. 
929;  Mills'  Ann.  St.  Colo.  §  2393.  This  is  true,  even  though  the  miner  con- 
ducts his  mining  carefully  and  in  the  only  feasible  way.  CARSON  v.  HAYES, 
supra;  Salstrom  v.  Orleans  Bar  Gold  Min.  Co.  supra. 

In  an  early  California  case  it  was  held  that  a  reasonable  amount  of  unap- 
propriated public  land  may  be  appropriated  as  a  place  of  deposit  for  tailings, 
but  that  to  acquire  a  right  to  such  ground  "the  place  of  deposit  must  be 
claimed  as  such,  or  as  a  mining  claim."  Jones  v.  Jackson,  9  Cal.  237.  In 
Miser  v.  O'Shea,  37  Or.  231,  62  Pac.  491,  82  Am.  St.  Rep.  751,  the  Oregon 
court  refused  to  yield  consent  to  the  doctrine  that  public  domain  may  be 
acquired  by  depositing  tailings  upon  it.  While  the  reasoning  of  the  Oregon 
court,  based  as  it  is  on  the  statute  of  limitations  not  running  against  the 
United  States,  is  not  conclusive,  it  is  certainly  doubtful  whether  anything 
short  of  a  mill  site  location  will  perfect  a  right  to  a  place  of  deposit  for  tail- 
ings. Compare  chapter  XIV,  §•  64,  supra.  Messrs.  Morrison  and  De  Soto, 
however,  think  that  an  easement  for  tailings  may  be  acquired  in  unlocated 
public  ground,  and  "advise  as  strict  a  location,  including  staking,  notice,  and 
record,  as  should  be  made  in  the  case  of  the  location  of  the  mining  or  ditch 
claim,  to  which  such  tailings  may  be  appurtenant."  Morrison's  Mining  Rights 
(13th  Ed.)  p.  232.  In  any  event  it  seems  that  tailings,  which  have  been  de- 
posited and  kept  on  public  lands  under  such  circumstances  as  to  show  an  in- 
tention not  to  abandon  them,  will  be  protected  from  location  as  a  placer  de- 
posit by  one  who  attempts  to  locate  the  ground  on  a  discovery  of  mineral  in 
the  tailings  and  without  showing  a  discovery  elsewhere.  RITTER  v.  LYNCH 
(C.  C.)  123  Fed.  930.  Land  on  which  abandoned  tailings  have  been  deposited 
is,  however,  so  analogous  to  mineral  land  that  the  first  one  to  claim  it  by 
mining  location  may  maintain  trespass  against  any  one  who  takes  and  car- 
ries away  any  of  the  tailings.  ROGERS  v.  COONEY,  7  Nev.  213. 

26  CHESSMAN  v.    HALE,   31   Mont.   577,   79   Pac.    254,    68   L.   R.   A.   410; 
WOODRUFF  v.  NORTH  BLOOMFIELD  GRAVEL  MIN.  CO.  (C.  C.)  18  Fed. 
753. 

27  WOODRUFF  v.  NORTH  BLOOMFIELD  GRAVEL  MIN.  CO.  (C.  C.)  18 
Fed.  753 ;    Hardt  v.  Liberty  Hill  Consolidated  Mining  &  Water  Co.  (C.  C.)  27 


534  WATER   RIGHTS   AND   DRAINAGE.  (Ch.    28 

1893, 28  created  the  California  Debris  Commission  to  license  and  reg- 
ulate such  mining  on  those  rivers.  The  constitutionality  of  that  act 
has  been  upheld  in  one  case  ;29  but  it  has  also  been  held  that  one  li- 
censed by  the  Debris  Commission  to  engage  in  hydraulic  mining  may 
nevertheless  be  enjoined  from  injuring  by  such  mining  the  property  of 
others.30 

DRAINAGE. 

158.  Water  from  mine  workings  may  legally  drain  through  subjacent 
or  adjacent  lands,  subject,  according  to  the  better  opinion,  to 
the  right  of  the  proprietor  of  the  subjacent  or  adjacent  lands 
to  barricade  himself  against  the  water. 

In  the  working  of  mining  claims  water  is  often  encountered,  and 
many  questions  naturally  arise  in  regard  to  the  right  of  the  mine 
owner  to  let  the  water  drain  into  his  neighbor's  territory.  Such 
questions  may  come  up  between  adjacent  locations,  or  between  super- 
jacent  and  subjacent  properties ;  but  in  each  situation  the  true  con- 
clusion would  seem  to  be  the  same,  namely,  that  the  owner  of  the 
lower  lying  ground  may  barricade  himself  against  the  water  which  is 
seeking  the  lower  level,  but  cannot  complain  if  by  natural  drainage  it 
comes  upon  his  ground.31  In  Alaska  one  whose  extralateral  right 
excavations  are  threatened  with  complete  flooding  through  the  sink- 
ing of  shafts  by  another  on  unbeatable  tide  lands  may  have  an  in- 
junction.32 The  owner  of  the  higher  ground  cannot  anywhere  cast 
upon  the  lower  ground  water  which,  undirected,  would  not  flow  upon 
the  latter;33  and,  wherever  Fletcher  v.  Rylands34  is  followed,  a  mine 

Fed.  788;  People  v.  Gold  Run  Ditch  &  Min.  Co.,  66  Cal.  138,  4  Pac.  1152,  56 
Am.  Rep.  80;  United  States  v.  North  Bloomfield  Gravel  Min.  Co.  (C.  C.)  53 
Fed.  625.  See  County  of  Yuba  v.  Cloke,  79  Cal.  239,  21  Pac.  740. 

2827  Stat.  507,  c.  183  (U.  S.  Comp.  St.  1901,  p.  3553).  Amended  in  1907 
(Act  Feb.  27,  1907,  c.  2077,  34  Stat  1001  [U.  S.  Comp.  St.  Supp.  1907,  p.  1064]). 

29  United  States  v.  North  Bloomfield  Gravel  Co.  (C.  C.)  81  Fed.  243 ;  North 
Bloomfield  Gravel  Min.  Co.  v.  United  States,  88  Fed.  664,  32  C.  C.  A.  84. 

so  Sutter  County  v.  Nicols  (Cal.)  93  Pac.  872. 

si  Baird  v.  Williamson,  15  Com.  B.  (N.  S.)  376;  LORD'S  EX'RS  v.  CARBON 
IRON  MFG.  CO.,  38  N.  J.  Eq.  452 ;  Philadelphia  R.,  Coal  &  Iron  Co.  v.  Taylor, 
5  Leg.  Gaz.  (Pa.)  392.  For  the  different  views  on  this  subject,  see  30  Am.  & 
Eng.  Ency.  Law  (2d  Ed.)  pp.  326-347;  1  Tiffany's  Modern  Law  of  Real  Prop- 
erty, §  298. 

3  2  Alaska  Gold  Min.  Co.  v.  Barbridge,  1  Alaska,  311. 

83  Locust  Mountain  Coal  &  Iron  Co.  v.  Gorrell,  9  Phila.  247;  Homer  v. 
Watson,  79  Pa.  242,  21  Am.  Rep.  55. 

3*  L.  R.  3  H.  L.  330.     See  Fletcher  v.  Smith,  L.  R.  2  App.  Gas.  781. 


§  158)  DRAINAGE.  535 

owner  who  pens  water  in  an  artificial  reservoir  must  keep  it  in  at  his 
peril.85 

Local  Statutes. 

In  at  least  one  state  by  statute  a  reservoir  owner  seems  to  be  made 
an  insurer  of  the  persons  and  property  of  others  from  injuries  caused 
by  the  leakage,  overflow,  or  giving  way  of  the  reservoir,36  while  in 
several  the  drainage  of  mines  is  regulated.37  In  Arizona  the  right  to 
regulate  such  drainage  is  based  upon  Rev.  St.  U.  S.  §  2338  (U.  S. 
Comp.  St.  1901,  p.  1436);  but  in  Colorado  and  Wyoming  it  is  based 
upon  express  provisions  in  the  state  constitutions.38 

35  But  it  has  been  held  that  this  does  not  apply  to  the  damming  up  of  wa- 
ter necessary  to  the  working  of  an  upper  claim,  provided  only  that  the  water 
thrown  on  the  lower  thereby  would  have  reached  the  latter  anyhow.  JONES 
v.  ROBERTSON,  116  111.  543,  6  N.  E.  890,  56  Am.  Rep.  786. 

se  See  Mills'  Ann.  St.  Colo.  §  2272 ;  Larimer  County  Ditch  Co.  v.  Zimmer- 
man, 4  Colo.  App.  78,  34  Pac.  1111 ;  Sylvester  v.  Jerome,  19  Colo.  128,  34  Pac. 
760. 

37  Civ.  Code  Ariz.  1901,  pars.  3252-3257;  Mills'  Ann.  St.  Colo.  §§  3172-3180; 
Rev.  St.  Wyo.  1899,  §  2535.  A  state  statute  which  provided  that  any  person 
who  by  machinery,  or  by  drains  or  adit  levels,  or  in  any  other  way,  should  rid 
lead-bearing  mineral  lands  of  water,  and  should  thereby  make  the  lands  pro- 
ductive and  available  for  mining  purposes,  should  "be  entitled  to  receive  one- 
tenth  of  all  the  lead  mineral  taken  from  said  lands  as  compensation  for 
such  drainage,"  was  held  to  be  constitutional  in  Ahern  v.  Dubuque  Lead  & 
Level  Min.  Co.,  48  Iowa,  140.  Where  mines  were  so  situated  that  draining 
one  drained  the  other,  a  contract  between  the  owners  to  share  the  expense  of 
draining  was  upheld.  Fisk  Min.  &  Mill.  Co.  v.  Reed,  32  Colo.  506,  77  Pac, 
240. 

» « Const  Colo,  art  16,  5  3;   Const.  Wyo.  art  9,  §  2. 


APPENDICES. 


CosT.MiN.L.  (537)* 


APPENDIX  A. 


UNITED    STATES    REVISED    STATUTORY   PROVISIONS 
ON  MINING  AND  SUBSEQUENT  ACTS  OF  CON- 
GRESS RELATING  THERETO. 


THE  REVISED  STATUTES. 

Possessory  actions  for  recovery  of  mining  titles. 

Sec.  910.  No  possessory  action  between  persons  in  any  court  of  the  United 
States  for  the  recovery  of  any  mining  title,  or  for  damages  to  any  such  title, 
shall  be  affected  by  the  fact  that  the  paramount  title  to  the  land  in  which  such 
mines  lie  is  in  the  United  States ;  but  each  case  shall  be  adjudged  by  the  law 
of  possession.  [27  Feb.,  1865,  c.  64,  s.  9,  v.  13,  p.  441  (U.  S.  Comp.  St.  1901,  p. 
679).] 

MINERAL  LANDS  AND  MINING  RESOURCES. 

Mineral  lands  reserved. 

Sec.  2318.  In  all  cases  lands  valuable  for  minerals  shall  be  reserved  from 
sale,  except  as  otherwise  expressly  directed  by  law.  [4  July,  1866,  c.  166,  s.  5, 
v.  14,  p.  86  (U.  S.  Comp.  St.  1901,  p.  1423).] 

Mineral  lands  open  to  purchase  by  citizens. 

Sec.  2319.  All  valuable  mineral  deposits  in  lands  belonging  to  the  United 
States,  both  surveyed  and  unsurveyed,  are  hereby  declared  to  be  free  and  open 
to  exploration  and  purchase,  and  the  lands  in  which  they  are  found  to  occu- 
pation and  purchase,  by  citizens  of  the  United  States  and  those  who  have  de- 
clared their  intention  to  become  such,  under  regulations  prescribed  by  law,  and 
according  to  the  local  customs  or  rules  of  miners  in  the  several  mining  dis- 
tricts, so  far  as  the  same  are  applicable  and  not  inconsistent  with  the  laws  of 
the  United  States.  [10  May,  1872,  c.  152,  s.  1,  v.  17,  p.  91  (U.  S.  Comp.  St. 
1901,  p.  1424).] 

Length  of  mining  claims  upon  veins  or  lodes. 

Sec.  2320.  Mining  claims  upon  veins  or  lodes  of  quartz  or  other  rock  in 
place  bearing  gold,  silver,  cinnabar,  lead,  tin,  copper,  or  other  valuable  de- 
posits, heretofore  located,  shall  be  governed  as  to  length  along  the  vein  or  lode 
by  the  customs,  regulations,  and  laws  in  force  at  the  date  of  their  location.  A 
mining  claim  located  after  the  tenth  day  of  May,  eighteen  hundred  and  seven- 
ty-two, whether  located  by  one  or  more  persons,  may  equal,  but  shall  not  ex- 
ceed, one  thousand  five  hundred  feet  in  length  along  the  vein  or  lode ;  but  no 
location  of  a  mining  claim  shall  be  made  until  the  discovery  of  the  vein  or  lode 
COST.MIN.L.  (539) 


540  APPENDIX   A. 

within  the  limits  of  the  claim  located.  No  claim  shall  extend  more  than  three 
hundred  feet  on  each  side  of  the  middle  of  the  vein  at  the  surface,  nor  shall 
any  claim  be  limited  by  any  mining  regulation  to  less  than  twenty-five  feet 
on  each  side  of  the  middle  of  the  vein  at  the  surface,  except  where  adverse 
rights  existing  on  the  tenth  day  of  May,  eighteen  hundred  and  seventy-two, 
render  such  limitation  necessary.  The  end  lines  of  each  claim  shall  be  parallel 
to  each  other.  [10  May,  1872,  c.  152,  s.  2,  v.  17,  p.  91  (U.  S.  Cornp.  St.  1901,  p. 
1424).] 

Proof  of  citizenship. 

Sec.  2321.  Proof  of  citizenship,  under  this  chapter,  may  consist,  in  the  case 
of  an  individual,  of  his  own  affidavit  thereof ;  in  the  case  of  an  association  of 
persons  unincorporated,  of  the  affidavit  of  their  authorized  agent,  made  on  his 
own  knowledge  or  upon  information  and  belief ;  and  in  the  case  of  a  corpora- 
tion organized  under  the  laws  of  the  United  States,  or  of  any  State  or  Territory 
thereof,  by  the  filing  of  a  certified  copy  of  their  charter  or  certificate  of  in- 
corporation. [10  May,  1872,  c.  152,  s.  7,  v.  17,  p.  94  (U.  S.  Comp.  St.  1901,  p. 
1425).] 

Locators'  rights  of  possession  and  enjoyment. 

Sec.  2322.  The  locators  of  all  mining  locations  heretofore  made  or  which 
shall  hereafter  be  made,  on  any  mineral  vein,  lode,  or  ledge,  situated  on  the 
public  domain,  their  heirs  and  assigns,  where  no  adverse  claim  exists  on  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two,  so  long  as  they  comply 
with  the  laws  of  the  United  States,  and  with  State,  Territorial,  and  local  regu- 
lations not  in  conflict  with  the  laws  of  the  United  States  governing  their  pos- 
sessory title,  shall  have  the  exclusive  right  of  possession  and  enjoyment  of  all 
the  surface  included  within  the  lines  of  their  locations,  and  of  all  veins,  lodes, 
and  ledges  throughout  their  entire  depth,  the  top  or  apex  of  which  lies  inside 
of  such  surface  lines  extended  downward  vertically,  although  such  veins,  lodes, 
or  ledges  may  so  far  depart  from  a  perpendicular  in  their  course  downward 
as  to  extend  outside  the  vertical  side  lines  of  such  surface  locations.  But 
their  right  of  possession  to  such  outside  parts  of  such  veins  or  ledges  shall 
be  confined  to  such  portions  thereof  as  lie  between  vertical  planes  drawn  down- 
ward as  above  described,  through  the  end  lines  of  their  locations,  so  continued 
in  their  own  direction  that  such  planes  will  intersect  such  exterior  parts  of 
such  veins  or  ledges.  And  nothing  in  this  section  shall  authorize  the  locator 
or  possessor  of  a  vein  or  lode  which  extends  in  its  downward  course  beyond 
the  vertical  lines  of  his  claim  to  enter  upon  the  surface  of  a  claim  owned  or 
possessed  by  another.  '[10  May,  1872,  c.  152,  s.  3,  v.  17,  p.  91  (U.  S.  Comp.  St. 
1901,  p.  1425).] 

Owners    of   tunnels,    rights    of. 

Sec.  2323.  Where  a  tunnel  is  run  for  the  development  of  a  vein  or  lode,  or 
for  the  discovery  of  mines,  the  owners  of  such  tunnel  shall  have  the  right  of 
possession  of  all  veins  or  lodes  within  three  thousand  feet  from  the  face  of 
such  tunnel  on  the  line  thereof,  not  previously  known  to  exist,  discovered  in 
such  tunnel,  to  the  same  extent  as  if  discovered  from  the  surface;  and  loca- 
tions en  the  line  of  such  tunnel  of  veins  or  lodes  not  appearing  on  the  surface, 
made  by  other  parties  after  the  commencement  of  the  tunnel,  and  while  the 
same  is  being  prosecuted  with  reasonable  diligence,  shall  be  invalid,  but  fail- 
ure to  prosecute  the  work  on  the  tunnel  for  six  months  shall  be  considered  as 
an  abandonment  of  the  right  to  all  undiscovered  veins  on  the  line  of  such  tun- 
nel. [10  May,  1872,  c.  152,  s.  4,  v.  17,  p.  92  (U.  S.  Comp.  St.  1901,  p.  1426).] 


ACTS   OF   CONGRESS.  541 

Regulations    made   by    miners. 

Sec.  2324.  The  miners  of  each  mining  district  may  make  regulations  not  in 
conflict  with  the  laws  of  the  United  States,  or  with  the  laws  of  the  State  or 
Territory  in  which  the  district  is  situated,  governing  the  location,  manner  of 
recording,  amount  of  work  necessary  to  hold  possession  of  a  mining  claim,  sub- 
ject to  the  following  requirements:  The  location  must  be  distinctly  marked  on 
the  ground  so  that  its  boundaries  can  be  readily  traced.  All  records  of  mining 
claims  hereafter  made  shall  contain  the  name  or  names  of  the  locators,  the 
date  of  the  location,  and  such  a  description  of  the  claim  or  claims  located  by 
reference  to  some  natural  object  or  permanent  monument  as  will  identify  the 
claim.  On  each  claim  located  after  the  tenth  day  of  May,  eighteen  hundred  and 
seventy-two,  and  until  a  patent  has  been  issued  therefor,  not  less  than  one 
hundred  dollars'  worth  of  labor  shall  be  performed  or  improvements  made  dur- 
ing each  year.  On  all  claims  located  prior  to  the  tenth  day  of  May,  eighteen 
hundred  and  seventy-two,  ten  dollars'  worth  of  labor  shall  be  performed  or  im- 
provements made  by  the  tenth  day  of  June,  eighteen  hundred  and  seventy-four, 
and  each  year  thereafter,  for  each  one  hundred  feet  in  length  along  the  vein 
until  a  patent  has  been  issued  therefor;  but  where  such  claims  are  held  In 
common,  such  expenditure  may  be  made  upon  any  one  claim ;  and  upon  a 
failure  to  comply  with  these  conditions  the  claim  or  mine  upon  which  such 
failure  occurred  shall  be  open  to  relocation  in  the  same  manner  as  if  no  loca- 
tion of  the  same  had  ever  been  made,  provided  that  the  original  locators, 
their  heirs,  assigns,  or  legal  representatives,  have  not  resumed  work  upon  the 
claim  after  failure  and  before  such  location.  Upon  the  failure  of  any  one  of 
several  co-owners  to  contribute  his  proportion  of  the  expenditures  required 
hereby,  the  co-owners  who  have  performed  the  labor  or  made  the  improve- 
ments may,  at  the  expiration  of  the  year,  give  such  delinquent  co-owner  per- 
sonal notice  in  writing  or  notice  by  publication  in  the  newspaper  published 
nearest  the  claim  for  at  least  once  a  week  for  ninety  days,  and  if  at  the  ex- 
piration of  ninety  days  after  such  notice  in  writing  or  by  publication  such  de- 
linquent should  fail  or  refuse  to  contribute  his  proportion  of  the  expenditure 
required  by  this  section  his  interest  in  the  claim  shall  become  the  property  of 
his  co-owners  who  have  made  the  required  expenditures.  [10  May,  1872,  c.  152, 
s.  5,  v.  17,  p.  92  (U.  S.  Comp.  St.  1901,  p.  1426).] 

Patents   for    mineral   lands,    how    obtained. 

Sec.  2325.  A  patent  for  any  land  claimed  and  located  for  valuable  deposits 
may  be  obtained  in  the  following  manner:  Any  person,  association,  or  cor- 
poration authorized  to  locate  a  claim  under  this  chapter,  having  claimed  and 
located  a  piece  of  land  for  such  purposes,  who  has,  or  have,  complied  with  the 
terms  of  this  chapter,  may  file  in  the  proper  land  office  an  application  for  a 
patent,  under  oath,  showing  such  compliance,  together  with  a  plat  and  field 
notes  of  the  claim  or  claims  in  common,  made  by  or  under  the  direction  of  the 
United  States  surveyor-general,  showing  accurately  the  boundaries  of  the  claim 
or  claims,  which  shall  be  distinctly  marked  by  monuments  on  the  ground,  and 
shall  post  a  copy  of  such  plat,  together  with  a  notice  of  such  application  for  a 
patent,  in  a  conspicuous  place  on  the  land  embraced  in  such  plat  previous  to 
the  filing  of  the  application  for  a  patent,  and  shall  file  an  affidavit  of  at  least 
two  persons  that  such  notice  has  been  duly  posted,  and  shall  file  a  copy  of  the 
notice  in  such  land  office,  and  shall  thereupon  be  entitled  to  a  patent  for  the 
land,  in  the  manner  following:  The  register  of  the  land  office,  upon  the  filing 
of  such  application,  plat,  field  notes,  notices,  and  affidavits,  shall  publish  a  no- 


542  APPENDIX  A. 

tice  that  such  application  has  been  made,  for  the  period  of  sixty  days,  in  a 
newspaper  to  be  by  him  designated  as  published  nearest  to  such  claim ;  and  he 
shall  also  post  such  notice  in  his  office  for  the  same  period.  The  claimant  at 
the  time  of  tiling  this  application,  or  at  any  time  thereafter,  within  the  sixty 
days  of  publication,  shall  file  with  the  register  a  certificate  of  the  United  States 
surveyor-general  that  five  hundred  dollars'  worth  of  labor  has  been  expended 
or  improvements  made  upon  the  claim  by  himself  or  grantors ;  that  the  plat  is 
correct,  with  such  further  description  by  such  reference  to  natural  objects  or 
permanent  monuments  as  shall  identify  the  claim,  and  furnish  an  accurate  de- 
scription to  be  incorporated  in  the  patent.  At  the  expiration  of  the  sixty  days 
of  publication  the  claimant  shall  file  his  affidavit,  showing  that  the  plat  and 
notice  have  been  posted  in  a  conspicuous  place  on  the  claim  during  such  period 
of  publication.  If  no  adverse  claim  shall  have  been  filed  with  the  register  and 
the  receiver  of  the  proper  land  office  at  the  expiration  of  the  sixty  days  of  pub- 
lication, it  shall  be  assumed  that  the  applicant  is  entitled  to  a  patent,  upon 
the  payment  to  the  proper  officer  of  five  dollars  per  acre,  and  that  no  adverse 
claim  exists;  and  thereafter  no  objection  from  third  parties  to  the  issuance  of 
a  patent  shall  be  heard,  except  it  be  shown  that  the  applicant  has  failed  to 
comply  with  the  terms  of  this  chapter.  [10  May,  1872,  c.  152,  s.  6,  v.  17,  p.  92 
(U.  S.  Comp.  St.  1901,  p.  1429).] 

Adverse   claim,    proceedings   on. 

Sec.  2326.  Where  an  adverse  claim  is  filed  during  the  period  of  publication, 
it  shall  be  upon  oath  of  the  person  or  persons  making  the  same,  and  shall  show 
the  nature,  boundaries,  and  extent  of  such  adverse  claim,  and  all  proceedings, 
except  the  publication  of  notice  and  making  and  filing  of  the  affidavit  thereof, 
shall  be  stayed  until  the  controversy  shall  have  been  settled  or  decided  by  a 
court  of  competent  jurisdiction,  or  the  adverse  claim  waived.  It  shall  be  the 
duty  of  the  adverse  claimant,  within  thirty  days  after  filing  his  clainf,  to 
commence  proceedings  in  a  court  of  competent  jurisdiction,  to  determine  the 
question  of  the  right  of  possession,  and  prosecute  the  same  with  reasonable 
diligence  to  final  judgment ;  and  a  failure  so  to  do  shall  be  a  waiver  of  his  ad- 
verse claim.  After  such  judgment  shall  have  been  rendered,  the  party  entitled 
to  the  possession  of  the  claim,  or  any  portion  thereof,  may,  without  giving  fur- 
ther notice,  file  a  certified  copy  of  the  judgment-roll  with  the  register  of  the 
land  office,  together  with  the  certificate  of  the  surveyor-general  that  the  requi- 
site amount  of  labor  has  been  expended  or  improvements  made  thereon,  and 
the  description  required  in  other  cases,  and  shall  pay  to  the  receiver  five  dol- 
lars per  acre  for  his  claim,  together  with  the  proper  fees,  whereupon  the  whole 
proceedings  and  the  judgment-roll  shall  be  certified  by  the  register  to  the  Com- 
missioner of  the  General  Land  Office,  and  a  patent  shall  issue  thereon  for  the 
claim,  or  such  portion  thereof  as  the  applicant  shall  appear,  from  the  decision 
of  the  court,  to  rightly  possess.  If  it  appears  from  the  decision  of  the  court 
that  several  parties  are  entitled  to  separate  and  different  portions  of  the  claim, 
each  party  may  pay  for  his  portion  of  the  claim  with  the  proper  fees,  and  file 
the  certificate  and  description  by  the  surveyor-general,  whereupon  the  register 
shall  certify  the  proceedings  and  judgment-roll  to  the  Commissioner  of  the 
General  Land  Office,  as  in  the  preceding  case,  and  patents  shall  issue  to  the 
several  parties  according  to  their  respective  rights.  Nothing  herein  contained 
shall  be  construed  to  prevent  the  alienation  of  a  title  conveyed  by  a  patent  for 
a  mining  claim  to  any  person  whatever.  [10  May,  1872,  c.  152,  s.  7,  v.  17,  p. 
93  (U.  S.  Comp.  St.  1901,  p.  1430).] 


ACTS   OF   CONGRESS.  543 

Description  of  mining  vein  or  lode  claims— Patents  to  conform  to  offi- 
cial monuments— Monnments  to  govern  descriptions. 

Sec.  2327.  The  description  of  vein  or  lode  claims  upon  surveyed  lands  shall 
designate  the  location  of  the  claims  with  reference  to  the  lines  of  the  public 
survey,  but  need  not  conform  therewith ;  but  where  patents  have  been  or  shall 
be  issued  for  claims  upon  unsurveyed  lands,  the  surveyors-general,  in  extend- 
ing the  public  survey,  shall  adjust  the  same  to  the  boundaries  of  said  patented 
claims  so  as  in  no  case  to  interfere  with  or  change  the  true  location  of  such 
claims  as  they  are  officially  established  upon  the  ground.  Where  patents  have 
issued  for  mineral  lands,  those  lands  only  shall  be  segregated  and  shall  be 
deemed  to  be  patented  which  are  bounded  by  the  lines  actually  marked,  defined, 
and  established  upon  the  ground  by  the  monuments  of  the  official  survey  upon 
which  the  patent  grant  is  based,  and  surveyors-general  in  executing  subsequent 
patent  surveys,  whether  upon  surveyed  or  unsurveyed  lands,  shall  be  governed 
accordingly.  The  said  monuments  shall  at  all  times  constitute  the  highest  au- 
thority as  to  what  land  is  patented,  and  in  case  of  any  conflict  between  the 
said  monuments  of  such  patented  claims  and  the  descriptions  of  said  claims  in 
the  patents  issued  therefor  the  monuments  on  the  ground  shall  govern,  and  er- 
roneous or  inconsistent  descriptions  or  calls  in  the  patent  descriptions  shall  give 
way  thereto.  [10  May,  1872,  c.  152,  s.  8,  v.  17,  p.  94  (U.  S.  Comp.  St.  1901,  p. 
1431).  Amended  Apr.  28,  1904,  33  Stat.  545  (U.  S.  Comp.  St  Supp.  1907,  p. 
477).] 

Pending  applications;  existing  rights. 

Sec.  2328.  Applications  for  patents  for  mining  claims  under  former  laws 
now  pending  may  be  prosecuted  to  a  final  decision  in  the  General  Land-Office ; 
but  in  such  cases  where  adverse  rights  are  not  affected  thereby,  patents  may 
issue  in  pursuance  of  the  provisions  of  this  chapter;  and  all  patents  for  min- 
ing claims  upon  veins  or  lodes  heretofore  issued  shall  convey  all  the  rights  and 
privileges  conferred  by  this  chapter  where  no  adverse  rights  existed  on  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two.  [10  May,  1872,  c.  152, 
B.  9,  v.  17,  p.  94  (U.  S.  Comp.  St.  1901,  p.  1431).] 

Conformity  of  placer  claims  to  surveys,  limit  of. 

Sec.  2329.  Claims  usually  called  "placers,"  including  all  forms  of  deposit, 
excepting  veins  of  quartz,  or  other  rock  in  place,  shall  be  subject  to  entry  and 
patent,  under  like  circumstances  and  conditions,  and  upon  similar  proceedings, 
as  are  provided  for  vein  or  lode  claims ;  but  where  the  lands  have  been  previ- 
ously surveyed  by  the  United  States,  the  entry  in  its  exterior  limits  shall  con- 
form to  the  legal  subdivisions  of  the  public  lands.  [9  July,  1870,  c.  235,  s.  12,  v. 
16,  p.  217  (U.  S.  Comp.  St.  1901,  p.  1432).] 

Subdivisions  of  ten-acre  tracts—Maximum  of  placer  locations1. 

Sec.  2330.  Legal  subdivisions  of  forty  acres  may  be  subdivided  into  ten-acre 
tracts;  and  two  or  more  persons,  or  associations  of  persons,  having  contigu- 
ous claims  of  any  size,  although  such  claims  may  be  less  than  ten  acres  each, 
may  make  joint  entry  thereof;  but  no  location  of  a  placer  claim,  made  after 
the  ninth  day  of  July,  eighteen  hundred  and  seventy,  shall  exceed  one  hundred 
and  sixty  acres  for  any  one  person  or  association  of  persons,  which  location 
shall  conform  to  the  United  States  surveys ;  and  nothing  in  this  section  con- 
tained shall  defeat  or  impair  any  bona  fide  preemption  or  homestead  claim  up- 
on agricultural  lands,  or  authorize  the  sale  of  the  improvements  of  any  bona 
fide  settler  to  any  purchaser.  [9  July,  1870,  c.  235,  s.  12,  v.  16,  p.  217  (U.  S. 
Comp.  St.  1901,  p.  1432).] 


544  APPENDIX  A. 

Conformity   of   placer   claims   to    surveys,    limitation   of   claims. 

Sec.  2331.  Where  placer  claims  are  upon  surveyed  lands,  and  conform  to 
legal  subdivisions,  no  further  survey  or  plat  shall  be  required,  and  all  placer- 
mining  claims  located  after  the  tenth  day  of  May,  eighteen  hundred  and  seven- 
ty-two, shall  conform  as  near  as  practicable  with  the  United  States  system  of 
public-land  surveys,  and  the  rectangular  subdivisions  of  such  surveys,  and  no 
such  location  shall  include  more  than  twenty  acres  for  each  individual  claim- 
ant ;  but  where  placer  claims  can  not  be  conformed  to  legal  subdivisions,  sur- 
vey and  plat  shall  be  made  as  on  unsurveyed  lands ;  and  where  by  the  segre- 
gation of  mineral  lands  in  any  legal  subdivision  a  quantity  of  agricultural  land 
less  than  forty  acres  remains,  such  fractional  portion  of  agricultural  land  may 
be  entered  by  any  party  qualified  by  law,  for  homestead  or  preemption  pur- 
poses. [10  May,  1872,  c.  152,  s.  10,  v.  17,  p.  94  (U.  S.  Comp.  St.  1901,  p.  1432).] 

What  evidence  of  possession,  &c.,  to  establish  a  right  to  a  patent. 

Sec.  2332.  Where  such  person  or  association,  they  and  their  grantors,  have 
held  and  worked  their  claims  for  a  period  equal  to  the  time  prescribed  by  the 
statute  of  limitations  for  mining  claims  of  the  State  or  Territory  where  the 
same  may  be  situated,  evidence  of  such  possession  and  working  of  the  claims 
for  such  period  shall  be  sufficient  to  establish  a  right  to  a  patent  thereto  un- 
der this  chapter,  in  the  absence  of  any  adverse  claim ;  but  nothing  in  this  chap- 
ter shall  be  deemed  to  impair  any  lien  which  may  have  attached  in  any  way 
whatever  to  any  mining  claim  or  property  thereto  attached  prior  to  the  issu- 
ance, of  a  patent.  [9  July,  1870,  c.  235,  s.  13,  v.  16,  p.  217  (U.  S.  Comp.  St.  1901, 
p.  1433).] 

Proceedings   for   patent   for   placer   claim,    etc. 

Sec.  2333.  Where  the  same  person,  association,  or  corporation  is  in  posses- 
sion of  a  placer  claim,  and  also  a  vein  or  lode  included  within  the  boundaries 
thereof,  application  shall  be  made  for  a  patent  for  the  placer  claim,  with  the 
statement  that  it  includes  such  vein  or  lode,  and  in  such  case  a  patent  shall 
issue  for  the  placer  claim,  subject  to  the  provisions  of  this  chapter,  including 
such  vein  or  lode,  upon  the  payment  of  five  dollars  ,per  acre  for  such  vein  or 
lode  claim  and  twenty-five  feet  of  surface  on  each  side  thereof.  The  remainder 
of  the  placer  claim  or  any  placer  claim  not  embracing  any  vein  or  lode  claim 
shall  be  paid  for  at  the  rate  of  two  dollars  and  fifty  cents  per  acre,  together 
with  all  costs  of  proceedings ;  and  where  a  vein  or  lode,  such  as  is  described  in 
section  twenty-three  hundred  and  twenty,  is  known  to  exist  within  the  bound- 
aries of  a  placer  claim,  an  application  for  a  patent  for  such  placer  claim  which 
does  not  include  an  application  for  the  vein  or  lode  claim  shall  be  construed  as 
a  conclusive  declaration  that  the  claimant  of  the  placer  claim  has  no  right  of 
possession  of  the  vein  or  lode  claim;  but  where  the  existence  of  a  vein  or  lode 
in  a  placer  claim  is  not  known,  a  patent  for  the  placer  claim  shall  convey  all 
valuable  mineral  and  other  deposits  within  the  boundaries  thereof.  [10  May, 
1872,  c.  152,  s.  11,  v.  17,  p.  94  (U.  S.  Comp.  St.  1901,  p.  1433).] 

Surveyor-general   to    appoint    surveyors    of   mining   claims,    etc. 

Sec.  2334.  The  surveyor-general  of  the  United  States  may  appoint  in  each 
land  district  containing  mineral  lands  as  many  competent  surveyors  as  shall 
apply  for  appointment  to  survey  mining  claims.  The  expenses  of  the  survey  of 
vein  or  lode  claims,  and  the  survey  and  subdivision  of  placer  claims  into  smal- 
ler quantities  than  one  hundred  and  sixty  acres,  together  with  the  cost  of  pub- 
lication of  notices,  shall  be  paid  by  the  applicants,  and  they  shall  be  at  liberty 


ACTS   OF  CONGRESS.  545 

to  obtain  the  same  at  the  most  reasonable  rates,  and  they  shall  also  be  at  lib- 
erty to  employ  any  United  States  deputy  surveyor  to  make  the  survey.  The 
Commissioner  of  the  General  Land  Office  shall  also  have  power  to  establish  the 
maximum  charges  for  surveys  and  publication  of  notices  under  this  chapter ; 
and,  in  case  of  excessive  charges  for  publication,  he  may  designate  any  news- 
paper published  in  a  land  district  where  mines  are  situated  for  the  publication 
of  mining  notices  in  such  district,  and  fix  the  rates  to  be  charged  by  such  pa- 
per ;  and,  to  the  end  that  the  Commissioner  may  be  fully  informed  on  the  sub- 
ject, each  applicant  shall  file  with  the  register  a  sworn  statement  of  all  charges 
and  fees  paid  by  such  applicant  for  publication  and  surveys,  together  with  all 
fees  and  money  paid  the  register  and  the  receiver  of  the  land  office,  which 
statement  shall  be  transmitted,  with  the  other  papers  in  the  case,  to  the  Com- 
missioner of  the  General  Land  Office.  [10  May,  1872,  c.  152,  s.  12,  v.  17,  p.  95 
(U.  S.  Comp.  St.  1901,  p.  1435).] 

Verification   of   affidavits,    etc. 

Sec.  2335.  All  affidavits  required  to  be  made  under  this  chapter  may  be  veri- 
fied before  any  officer  authorized  to  administer  oaths  within  the  land  district 
where  the  claims  may  be  situated,  and  all  testimony  and  proofs  may  be  taken 
before  any  such  officer,  and,  when  duly  certified  by  the  officer  taking  the  same, 
shall  have  the  same  force  and  effect  as  if  taken  before  the  register  and  receiver 
of  the  land  office.  In  cases  of  contest  as  to  the  mineral  or  agricultural  charac- 
ter of  land,  the  testimony  and  proofs  may  be  taken  as  herein  provided  on  per- 
sonal notice  of  at  least  ten  days  to  the  opposing  party ;  or  if  such  party  can 
not  be  found,  then  by  publication  of  at  least  once  a  week  for  thirty  days  in  a 
newspaper,  to  be  designated  by  the  register  of  the  land  office  as  published  near- 
est to  the  location  of  such  land ;  and  the  register  shall  require  proof  that  such 
notice  has  been  given.  [10  May,  1872,  c.  152,  s  13,  v.  17,  p.  95  (U.  S.  Cornp.  St. 
1901,  p.  1435).] 

"Where  veins  intersect,  etc. 

Sec.  2336.  Where  two  or  more  veins  intersect  or  cross  each  other,  priority 
of  title  shall  govern,  and  such  prior  location  shall  be  entitled  to  all  ore  or  min- 
eral contained  within  the  space  of  intersection;  but  the  subsequent  location 
shall  have  the  right  of  way  through  the  space  of  intersection  for  the  purposes 
of  the  convenient  working  of  the  mine.  And  where  two  or  more  veins  unite, 
the  oldest  or  prior  location  shall  take  the  vein  below  the  point  of  union,  includ- 
ing all  the  space  of  intersection.  [10  May,  1872,  c.  152,  s.  14,  v.  17,  p.  96  (U.  S. 
Comp.  St.  1901,  p.  1436).] 

Patents   for   nonmineral   lands,    etc. 

Sec.  2337.  Where  nonmineral  land  not  contiguous  to  the  vein  or  lode  is 
used  or  occupied  by  the  proprietor  of  such  vein  or  lode  for  mining  or  mill- 
ing purposes,  such  nonadjacent  surface  ground  may  be  embraced  and  in- 
cluded in  an  application  for  a  patent  for  such  vein  or  lode,  'and  the  same 
may  be  patented  therewith,  subject  to  the  same  preliminary  requirements  as  to 
survey  and  notice  as  are  applicable  to  veins  or  lodes ;  but  no  location  hereafter 
made  of  such  nonadjacent  land  shall  exceed  five  acres,  and  payment  for  the 
same  must  be  made  at  the  same  rate  as  fixed  by  this  chapter  for  the  superfi- 
cies of  the  lode.  The  owner  of  a  quartz  mill  or  reduction  works,  not  owning  a 
mine  in  connection  therewith,  may  also  receive  a  patent  for  his  mill  site,  as 
provided  in  this  section.  [10  May,  1872,  c.  152,  s.  15,  v.  17,  p.  96  (U.  S.  Comp. 
St.  1901,  p.  1436).] 

COST.MIN.L.— 35 


546  APPENDIX   A. 

What  conditions  of  sale  may  be  made  by  local  legislature. 

Sec.  2338.  As  a  condition  of  sale,  in  the  absence  of  necessary  legislation  by 
Congress,  the  local  legislature  of  any  State  or  Territory  may  provide  rules  for 
working  mines,  involving  easements,  drainage,  and  other  necessary  means  to 
their  complete  development;  and  those  conditions  shall  be  fully  expressed  in 
the  patent.  [26  July,  1866,  c.  262,  s.  5,  v.  14,  p.  252  (U.  S.  Couip.  St.  1901,  p. 
1436).] 

Vested  rights  to  use  of  water  for  mining,  etc. — Right  of  way  for  camals. 

Sec.  2339.  Whenever,  by  priority  of  possession,  rights  to  the  use  of  water  for 
mining,  agricultural,  manufacturing,  or  other  purposes,  have  vested  and  ac- 
crued, and  the  same  are  recognized  and  acknowledged  by  the  local  customs, 
laws,  and  the  decisions  of  courts,  the  possessors  and  owners  of  such  vested 
rights  shall  be  maintained  and  protected  in  the  same;  and  the  right  of  way 
for  the  construction  of  ditches  and  canals  for  the  purposes  herein  specified  is 
acknowledged  and  confirmed;  but  whenever  any  person,  in  the  construction  of 
any  ditch  or  canal,  injures  or  damages  the  possession  of  any  settler  on  the 
public  domain,  the  party  committing  such  injury  or  damage  shall  be  liable  to 
the  party  injured  for  such  injury  or  damage.  [26  July,  1866,  c.  262,  s.  9,  v.  14, 
p.  253  (U.  S.  Cornp.  St.  1901,  p.  1437).] 

Patents,   preemptions,  and  homesteads  subject  to  vested  and  accrued 
water  rights. 

Sec.  2340.  All  patents  granted,  or  preemption  or  homesteads  allowed,  shall 
be  subject  to  any  vested  and  accrued  water  rights,  or  rights  to  ditches  and 
reservoirs  used  in  connection  with  such  water  rights,  as  may  have  been  acquir- 
ed under  or  recognized  by  the  preceding  section.  [9  July,  1870,  c.  235,  s.  17,  v. 
16,  p.  218  (U.  S.  Cornp.  St.  1901,  p.  1437).] 

Mineral    lands    in    which    no    valuable    mines    are    discovered   open    to 
homesteads. 

Sec.  2341.  Wherever,  upon  the  lands  heretofore  designated  as  mineral  lands, 
which  have  been  excluded  from  survey  and  sale,  there  have  been  homesteads 
made  by  citizens  of  the  United  States,  or  persons  who  have  declared  their  in- 
tention to  become  citizens,  which  homesteads  have  been  made,  improved,  and 
used  for  agricultural  purposes,  and  upon  which  there  have  been  no  valuable 
mines  of  gold,  silver,  cinnabar,  or  copper  discovered,  and  which  are  properly 
agricultural  lands,  the  settlers  or  owners  of  such  homesteads  shall  have  a  right 
of  preemption  thereto,  and  shall  be  entitled  to  purchase  the  same  at  the  price 
of  one  dollar  and  twenty-five  cents  per  acre,  and  in  quantity  not  to  exceed  one 
hundred  and  sixty  acres;  or  they  may  avail  themselves  of  the  provisions  of 
chapter  five  of  this  Title,  relating  to  "Homesteads."  [26  July,  1866,  c.  262,  s. 
10,  v.  14,  p.  253  (U.  S.  Comp.  St.  1901,  p.  1437).] 

Mineral  lands,  how  set  apart  as  agricultural  lands. 

Sec.  2342.  Upon  the  survey  of  the  lands  described  in  the  preceding  sec- 
tion, the  Secretary  of  the  Interior  may  designate  and  set  apart  such  portions 
of  the  same  as  are  clearly  agricultural  lands,  which  lands  shall  thereafter  be 
subject  to  preemption  and  sale  as  other  public  lands,  and  be  subject  to  all  the 
laws  and  regulations  applicable  to  the  same.  [26  July,  1866,  c.  262,  s.  11,  v.  14, 
p.  253  (U.  S.  Comp.  St.  1901,  p.  1437).] 

Additional  land  districts  and  officers,  power  of  the  President  to  pro- 
vide. 

Sec.  2343.  The  President  is  authorized  to  establish  additional  land  districts, 
and  to  appoint  the  necessary  officers  under  existing  laws,  wherever  he  may 


ACTS   OF   CONGRESS.  547 

deem  the  same  necessary  for  the  public  convenience  in  executing  the  provi- 
sions of  this  chapter.  [26  July,  1S66,  c.  262,  s.  7,  v.  14,  p.  252  (U.  S.  Comp.  St. 
1901,  p.  1438).] 

Provisions  of  this  chapter  not  to   affect   certain  rights. 

Sec.  2344.  Nothing  contained  in  this  chapter  shall  be  construed  to  impair, 
in  any  way,  rights  or  interests  in  mining  property  acquired  under  existing 
laws;  nor  to  affect  the  provisions  of  the  act  entitled  "An  act  granting  to  A. 
Sutro  the  right  of  way  and  othel*  privileges  to  aid  in  the  construction  of  n 
draining  and  exploring  tunnel  to  the  Comstock  lode,  in  the  State  of  Nevada," 
approved  July  twenty-five,  eighteen  hundred  and  sixty-six.  [10  May,  1872,  c. 
152,  s.  16,  v.  17,  p.  96 ;  9  July,  1870,  c.  235,  s.  17,  v.  16,  p.  218  (U.  S.  Comp.  St. 
1901,  p.  1438).] 

Mineral  lands  in  certain  states  excepted. 

Sec.  2345.  The  provisions  of  the  preceding  sections  of  this  chapter  shall  not 
apply  to  the  mineral  lands  situated  in  the  States  of  Michigan,  Wisconsin,  and 
Minnesota,  which  are  declared  free  and  open  to  exploration  and  purchase,  ac- 
cording to  legal  subdivisions,  in  like  manner  as  before  the  tenth  day  of  May, 
eighteen  hundred  and  seventy-two.  And  any  bona  fide  entries  of  such  lands 
within  the  States  named  since  the  tenth  day  of  May,  eighteen  hundred  and  sev- 
enty-two, may  be  patented  without  reference  to  any  of  the  foregoing  provisions 
of  this  chapter.  Such  lands  shall  be  offered  for  public  sale  in  the  same  manner, 
at  the  same  minimum  price,  and  under  the  same  rights  of  pre-emption  as  other 
public  lands.  [18  Feb.,  1873,  c.  159,  v.  17,  p.  465  (U.  S.  Comp.  St.  1901,  p.  1438).] 

Grant  of  lands  to  states  or  corporations  not  to  include  mineral  lands. 

Sec.  2346.  No  act  passed  at  the  first  session  of  the  Thirty-eighth  Congress, 
granting  lands  to  States  or  corporations  to  aid  in  the  construction  of  roads  or 
for  other  purposes,  or  to  extend  the  time  of  grants  made  prior  to  the  thirtieth 
day  of  January,  eighteen  hundred  and  sixty-five,  shall  be  so  construed  as  to 
embrace  mineral  lands,  which  in  all  cases  are  reserved  exclusively  to  the  Unit- 
ed States,  unless  otherwise  specially  provided  in  the  act  or  acts  making  the 
grant.  [30  Jan.,  1865,  Res.  No.  10,  v.  13,  p.  567  (U.  S.  Comp.  St.  1901,  p.  1439).] 

ACTS  OF  CONGRESS  PASSED  SUBSEQUENT  TO  THE  REVISED 

STATUTES. 

An  Act  to  amend  the  act  entitled  "An  act  to  promote  the  development  of  the 
mining  resources  of  the  United  States,"  passed  May  tenth,  eighteen  hun- 
dred and  seventy-two. 

Claim  located  prior  to  May  1O,  1872,  first  annual  expenditure  ex- 
tended to  January  1,  1875. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  the  provisions  of  the  fifth  sec- 
tion of  the  act  entitled  "An  act  to  promote  the  development  of  the  mining  re- 
sources of  the  United  States,"  passed  May  tenth,  eighteen  hundred  and  seven- 
ty-two, which  requires  expenditures  of  labor  and  improvements  on  claims  lo- 
cated prior  to  the  passage  of  said  act,  are  hereby  so  amended  that  the  time  for 
the  first  annual  expenditure  on  claims  located  prior  to  the  passage  of  said  act 
shall  be  extended  to  the  first  day  of  January,  eighteen  hundred  and  seventy- 
five.  [Act  of  Congress  approved  June  6,  1874  (18  Stat.  L.,  61).] 


548  APPENDIX   A. 

An  Act  to  amend  section  two  thousand  three  hundred  and  twenty-four  of  the 
Revised  Statutes,  relating  to  the  development  of  the  mining  resources  of 
the  United  States. 

Money  expended  in  a  tunnel  considered  as  expended  on  the  lode. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  section  two  thousand  three  hun- 
dred and  twenty-four  of  the  Revised  Statutes  be,  and  the  same  is  hereby, 
amended  so  that  where  a  person  or  company  has  or  may  run  a  tunnel  for  the 
purpose  of  developing  a  lode  or  lodes,  owned  by  said  person  or  company,  the 
money  so  expended  in  said  tunnel  shall  be  taken  and  considered  as  expended 
on  said  lode  or  lodes,  whether  located  prior  to  or  since  the  passage  of  said 
act ;  and  such  person  or  company  shall  not  be  required  to  perform  work  on 
the  surface  of  said  lode  or  lodes  in  order  to  hold  the  same  as  required  by  said 
act.  [Act  of  Congress  approved  February  11,  1875  (18  Stat.  L.,  315;  U.  S. 
Comp.  St.  ,1901,  p.  1427).] 

An  Act  to  exclude  the  States  of  Missouri  and  Kansas  from  the  provisions  of 
the  act  of  Congress  entitled  "An  act  to  promote  the  development  of  the 
mining  resources  of  the  United  States,"  approved  May  tenth,  eighteen  hun- 
dred and  seventy-two. 

Missouri  and  Kansas  excluded  from  the  operation  of  the  mineral  laws. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  within  the  States  of  Missouri 
and  Kansas  deposits  of  coal,  iron,  lead,  or  other  mineral  be,  and  they  are  here- 
by, excluded  from  the  operation  of  the  act  entitled  "An  act  to  promote  the  de- 
velopment of  the  mining  resources  of  the  United  States,"  approved  May  tenth, 
eighteen  hundred  and  seventy-two,  and  all  lands  in  said  States  shall  be  subject 
to  disposal  as  agricultural  lands.  [Act  of  Congress  approved  May  5,  1876  (19 
Stat.  L.,  52;  U.  S.  Comp.  St.  1901,  p.  1439).] 

An  Act  authorizing  the  citizens  of  Colorado,  Nevada,  and  the  Territories  to  fell 
and  remove  timber  on  the  public  domain  for  mining  and  domestic  purposes. 

Citizens  of  Colorado,  Nevada,  and  the  Territories  authorized  to  fell 
and  remove  timber  on  the  public  domain  for  mining  and  domestic 
purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  all  citizens  of  the  United 
States  and  other  persons,  bona  fide  residents  of  the  State  of  Colorado,  or  Ne- 
vada, or  either  of  the  Territories  of  New  Mexico,  Arizona,  Utah,  Wyoming, 
Dakota,  Idaho,  or  Montana,  and  all  other  mineral  districts  of  the  United 
States,  shall  be,  and  are  hereby,  authorized  and  permitted  to  fell  and  remove, 
for  building,  agricultural,  mining,  or  other  domestic  purposes,  any  timber  or 
other  trees  growing  or  being  on  the  public  lands,  said  lands  being  mineral,  and 
not  subject  to  entry  under  existing  laws  of  the  United  States,  except  for  min- 
eral entry,  in  either  of  said  States,  Territories,  or  districts  of  which  such  citi- 
zens or  persons  may  be  at  the  time  bona  fide  residents,  subject  to  such  rules 
and  regulations  as  the  Secretary  of  the  Interior  may  prescribe  for  the  pro- 
tection of  the  timber  and  of  the  undergrowth  growing  upon  such  lands,  and 
for  other  purposes:  Provided,  The  provisions  of  this  act  shall  not  extend  to 
railroad  corporations.  [Act  of  Congress  approved  June  3,  1878  (20  Stat.  L., 
88 ;  U.  S.  Comp.  St.  1901,  p.  1528).] 


ACTS   OF   CONGRESS.  549 

Sec.  2.  That  it  shall  be  the  duty  of  the  register  and  the  receiver  of  any 
local  land  office  in  whose  district  any  mineral  land  may  be  situated  to  ascertain 
from  time  to  time  whether  any  timber  is  being  cut  or  used  upon  any  such  lands, 
except  for  the  purposes  authorized  by  this  act,  within  their  respective  land 
districts;  and,  if  so,  they  shall  immediately  notify  the  Commissioner  of  the 
General  Land  Office  of  that  fact;  and  all  necessary  expenses  incurred  in  mak- 
ing such  proper  examinations  shall  be  paid  and  allowed  such  register  and  re- 
ceiver in  making  up  their  next  quarterly  accounts.  [Ibid.] 

Sec.  3.  Any  person  or  persons  who  shall  violate  the  provisions  of  this  act, 
or  any  rules  and  regulations  in  pursuance  thereof  made  by  the  Secretary  of  the 
Interior,  shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon  conviction,  shall 
be  fined  in  any  sum  not  exceeding  five  hundred  dollars,  and  to  which  may  be 
added  imprisonment  for  any  term  not  exceeding  six  months.  [Ibid.] 

An  Act  to  amend  sections  twenty-three  hundred  and  twenty-four  and  twenty- 
three  hundred  and  twenty-five  of  the  Revised  Statutes  of  the  United  States 
concerning  mineral  lands. 

Application  for  patent  may  be  made  by  authorized  agent. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  section  twenty-three  hundred 
and  twenty-five  of  the  Revised  Statutes  of  the  United  States  be  amended  by 
adding  thereto  the  following  words:  "Provided,  That  where  the  claimant  for 
a  patent  is  not  a  resident  of  or  within  the  land  district  wherein  the  vein,  lode, 
ledge,  or  deposit  sought  to  be  patented  is  located,  the  application  for  patent  and 
the  affidavits  required  to  be  made  in  this  section  by  the  claimant  for  such  pat- 
ent may  be  made  by  his,  her,  or  its  authorized  agent,  where  said  agent  is  con- 
versant with  the  facts  sought  to  be  established  by  said  affidavits:  And  pro- 
vided, That  this  section  shall  apply  to  all  applications  now  pending  for  patents 
to  mineral  lands."  [Act  of  Congress  approved  Jan.  22,  1880  (21  Stat  L.,  61 ; 
U.  S.  Comp.  St.  1901,  p.  1429).] 

On  unpatented  claims  period  commences  on  January  1  succeeding: 
date  of  location. 

Sec.  2.  That  section  twenty-three  hundred  and  twenty-four  of  the  Revised 
Statutes  of  the  United  States  be  amended  by  adding  the  following  words: 
"Provided,  That  the  period  within  which  the  work  required  to  be  done  an- 
nually on  all  unpatented  mineral  claims  shall  commence  on  the  first  day  of 
January  succeeding  the  date  of  location  of  such  claim,  and  this  section  shall 
apply  to  all  claims  located  since  the  tenth  day  of  May,  anno  Domini  eighteen 
hundred  and  seventy-two."  [Act  of  Congress  approved  Jan.  22,  1880  (21  Stat. 
L.,  61 ;  U.  S.  Comp.  St.  1901,  p.  1427).] 

An  Act  to  amend  section  twenty-three  hundred  and  twenty-six  of  the  Revised 
Statutes  relating  to  suits  at  law  affecting  the  title  to  mining  claims. 

In  action  brought  title  not   established  in  either  party. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  if,  in  any  action  brought  pur- 
suant to  section  twenty-three  hundred  and  twenty-six  of  the  Revised  Statutes, 
title  to  the  ground  in  controversy  shall  not  be  established  by  either  party,  the 
jury  shall  so  find,  and  judgment  shall  be  entered  according  to  the  verdict.  In 
such  case  costs  shall  not  be  allowed  to  either  party,  and  the  claimant  shall  not 
proceed  in  the  land  office  or  be  entitled  to  a  patent  for  the  ground  in  contro- 


550  APPENDIX   A. 

versy  until  he  shall  have  perfected  his  title.    [Act  of  Congress  approved  March 
3,  1881  (21  Stat.  L.,  505 ;  U.  S.  Comp.  St.  1901,  p.  1431).] 

An  Act  to  amend  section  twenty-three  hundred  and  twenty-six  of  the  Revised 
Statutes  in  regard  to  mineral  lands,  and  for  other  purposes. 

Adverse  claim  may  be  verified  by   agent. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  the  adverse  claim  required  by 
section  twenty-three  hundred  and  twenty-six  of  the  Revised  Statutes  may  be 
verified  by  the  oath  of  any  duly  authorized  agent  or  attorney  in  fact  of  the 
adverse  claimant  cognizant  of  the  facts  stated;  and  the  adverse  claimant,  if 
residing  or  at  the  time  being  beyond  the  limits  of  the  district  wherein  the 
claim  is  situated,  may  make  oath  to  the  adverse  claim  before  the  clerk  of  any 
court  of  record  of  the  United  States  or  the  State  or  Territory  where  the  ad- 
verse claimant  may  then  be,  or  before  any  notary  public  of  such  State  or  Ter- 
ritory. [Sec.  1,  act  of  Congress  approved  Apr.  26,  1882  (22  Stat.  L.,  49;  U. 
S.  Comp.  St.  1901,  p.  1431).] 

Affidavit  of  citizenship,  before  whom  made. 

Sec.  2.  That  applicants  for  mineral  patents,  if  residing  beyond  the  limits 
of  the  district  wherein  the  claim  is  situated,  may  make  any  oath  or  uimiaMt 
required  for  proof  of  citizenship  before  the  clerk  of  any  court  of  record,  or 
before  any  notary  public  of  any  State  or  Territory.  [Sec.  2,  act  of  Congress 
approved  Apr.  26,  1882  (22  Stat.  L.,  49 ;  U.  S.  Comp.  St.  1901,  p.  1425).] 

An  Act  to  exclude  the  public  lands  in  Alabama  from  the  operation  of  the 
laws  relating  to  mineral  lands. 

Alabama  excepted  from  the  operation  of  the  mineral  laws. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  within  the  State  of  Alabama 
all  public  lands,  whether  mineral  or  otherwise,  shall  be  subject  to  disposal 
only  as  agricultural  lands:  Provided,  however,  That  all  lands  which  have  here- 
tofore been  reported  to  the  General  Land  Office  as  containing  coal  and  iron 
shall  first  be  offered  at  public  sale:  And  provided  further,  That  any  bona  fide 
entry  under  the  provisions  of  the  homestead  law  of  lands  within  said  State 
heretofore  made  may  be  patented  without  reference  to  an  act  approved  May 
tenth,  eighteen  hundred  and  seventy-two,  entitled  "An  act  to  promote  the 
development  of  the  mining  resources  of  the  United  States,"  in  cases  where  the 
persons  making  application  for  such  patents  have  in  all  other  respects  com- 
plied with  the  homestead  law  relating  thereto.  [Act  of  Congress  approved 
Mai*.  3,  1883  (22  Stat.  L.,  487 ;  U.  S.  Comp.  St.  1901,  p.  1439).] 

An  Act  providing  a  civil  government  for  Alaska. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled, 

***********          * 

Mining  laws  extended  to  the  district  of  Alaska. 

Sec.  8.  That  the  said  district  of  Alaska  is  hereby  created  a  land  district, 
and  a  United  States  land  office  for  said  district  is  hereby  located  at  Sitka.  The 
commissioner  provided  for  by  this  act  to  reside  at  Sitka  shall  be  ex  officio 
register  of  said  land  office,  and  the  clerk  provided  for  by  this  act  shall  be  ex 
officio  receiver  of  public  moneys,  and  the  marshal  provided  for  by  this  act 
shall  be  ex  officio  surveyor-general  of  said  district  and  the  lawrs  of  the  Unit- 


ACTS   OF   CONGRESS.  551 

ed  States  relating  to  mining  claims,  and  the  rights  incident  thereto  shall, 
from  and  alter  the  passage  of  this  act,  be  in  full  force  and  effect  in  said  dis- 
trict, under  the  administration  thereof  herein  provided  for,  subject  to  such 
regulations  as  may  be  made  by  the  Secretary  of  the  Interior,  approved  by  the 
President:  Provided,  That  the  Indians  or  other  persons  in  said  district  shall 
not  be  disturbed  in  the  possession  of  any  lands  actually  in  their  use  or  occupa- 
tion or  now  claimed  by 'them  but  the  terms  under  which  such  persons  may  ac- 
quire title  to  such  lands  is  reserved  for  future  legislation  by  Congress:  And 
provided  further,  That  parties  who  have  located  mines  or  mineral  privileges 
therein  under  the  laws  of  the  United  States  applicable  to  the  public  domain, 
or  who  have  occupied  and  improved  or  exercised  acts  of  ownership  over  such 
claims,  shall  not  be  disturbed  therein,  but  shall  be  allowed  to  perfect  their 
title  to  such  claims  by  payment  as  aforesaid:  And  provided  also,  That  the 
land  not  exceeding  six  hundred  and  forty  acres  at  any  station  now  occupied 
as  missionary  stations  among  the  Indian  tribes  in  said  section,  with  the  im- 
provements thereon  erected  by  or  for  such  societies,  shall  be  continued  in  the 
occupancy  of  the  several  religious  societies  to  which  said  missionary  stations 
respectively  belong  until  action  by  Congress.  But  nothing  contained  in  this 
act  shall  be  construed  to  put  in  force  in  said  district  the  general  land  laws  of 
the  United  States.  [Act  of  Congress  approved  May  17,  1884  (23  Stat.  L.,  24).] 

An  Act  making  appropriations  for  sundry  civil  expenses  of  the  Government 
for  the  fiscal  year  ending  June  thirtieth,  eighteen  hundred  and  ninety- 
one,  and  for  other  purposes. 
Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 

States  of  America  in  Congress  assembled, 

************ 

Right  of  entry  under  all  the  land  laws  restricted  to  320  acres.  (Re- 
pealed, see  act  Mar.  3,  1891,  sec.  17  [26  Stat.  11O1;  U.  S.  Comp. 
St.  1901,  p.  1405].)— Reservation  in  patents  for  right  of  way  for 
ditches  and  canals  constructed1. 

No  person  who  shall  after  the  passage  of  this  act,  enter  upon  any  of  the 
public  lands  with  a  view  to  occupation,  entry,  or  settlement  under  any  of  the 
land  laws  shall  be  permitted  to  acquire  title  to  more  than  three  hundred  and 
twenty  acres  in  the  aggregate,  under  all  of  said  laws,  but  this  limitation  shall 
not  operate  to  curtail  the  right  of  any  person  who  has  heretofore  made  entry 
or  settlement  on  the  public  lands,  or  whose  occupation,  entry  or  settlement, 
is  validated  by  this  act:  Provided,  That  in  all  patents  for  lands  hereafter  taken 
up  under  any  of  the  land  laws  of  the  United  States  or  on  entries  or  claims 
validated  by  this  act  west  of  the  one  hundredth  meridian  it  shall  be  expressed 
that  there  is  reserved  from  the  lands  in  said  patent  described  a  right  of  way 
thereon  for  ditches  or  canals  constructed  by  the  authority  of  the  United 
States.  *  *  *  [Act  of  Congress  approved  Aug.  30,  1890  (26  Stat.  L.,  391 ;  U. 
S.  Comp.  St.  1901,  p.  1404).] 

An  Act  to  repeal  the  timber-culture  laws,  and  for  other  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled, 

*          *          *          *          *          *          *          *          *          *          *          * 

Town  sites  on  mineral  lands  authorized — Lands  entered  under  the  min- 
eral laws  not  included  in  restriction  to  320  acres. 

Sec.  1G.  That  town-site  entries  may  be  made  by  incorporated  towns  and 
cities  on  the  mineral  lands  of  the  United  States,  but  no  title  shall  be  acquired 


652  APPENDIX  A. 

by  such  towns  or  cities  to  any  vein  of  gold,  silver,  cinnabar,  copper,  or  lead, 
or  to  any  valid  mining  claim  or  possession  held  under  existing  law.  When 
mineral  veins  are  possessed  within  the  limits  of  an  incorporated  town  or  city, 
and  such  possession  is  recognized  by  local  authority  or  by  the  laws  of  the 
United  States,  the  title  to  town  lots  shall  be  subject  to  such  recognized  pos- 
session and  the  necessary  use  thereof,  and  when  entry  has  been  made  or  patent 
issued  for  such  town  sites  to  such  incorporated  town  or  city,  the  possessor  of 
such  mineral  vein  may  enter  and  receive  patent  for  such  mineral  vein,  and 
the  surface  ground  appertaining  thereto:  Provided,  That  no  entry  shall  be 
made  by  such  mineral-vein  claimant  for  surface  ground  where  the  owner  or 
occupier  of  the  surface  ground  shall  have  had  possession  of  the  same  before 
the  inception  of  the  title  of  the  mineral-vein  applicant.  [Act  of  Congress  ap- 
proved Mar.  3,  1891  (26  Stat.  L.  1101;  U.  S.  Comp.  St.  1901,  p.  1459).] 

Sec.  17.  That  reservoir  sites  located  or  selected  and  to  be  located  and  se- 
lected under  the  provisions  of  "An  act  making  appropriations  for  sundry  civil 
expenses  of  the  Government  for  the  fiscal  year  ending  June  thirtieth,  eighteen 
hundred  and  eighty-nine,  and  for  other  purposes,"  and  amendments  thereto, 
shall  be  restricted  to  and  shall  contain  only  so  much  land  as  is  actually  nec- 
essary for  the  construction  and  maintenance  of  reservoirs,  excluding  so  far 
as  practicable  lands  occupied  by  actual  settlers  at  the  date  of  the  location 
of  said  reservoirs,  and  that  the  provisions  of  "An  act  making  appropriations 
for  sundry  civil  expenses  of  the  Government  for  the  fiscal  year  ending  June 
thirtieth,  eighteen  hundred  and  ninety-one,  and  for  other  purposes,"  which 
reads  as  follows,  viz:  "No  person  who  shall  after  the  passage  of  this  act 
enter  upon  any  of  the  public  lands  with  a  view  to  occupation,  entry,  or  settle- 
ment under  any  of  the  land  laws  shall  be  permitted  to  acquire  title  to  more 
than  three  hundred  and  twenty  acres  in  the  aggregate  under  all  said  laws," 
shall  be  construed  to  include  in  the  maximum  amount  of  lands  the  title  to 
which  is  permitted  to  be  acquired  by  one  person  only  agricultural  lands  and 
not  include  lands  entered  or  sought  to  be  entered  under  mineral  land  laws. 
[Act  of  Congress  approved  Mar.  3,  1891  (26  Stat.  L.  1101;  U.  S.  Comp.  St. 
1901,  p.  1554).] 

************ 

An  Act  to  authorize  the  entry  of  lands  chiefly  valuable  for  building  stone 
under  the  placer  mining  laws. 

Entry  of  lands  chiefly  valuable  for  building:  stone  under  the  placer-min- 
ing laws. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  any  person  authorized  to  enter 
lands  under  the  mining  laws  of  the  United  States  may  enter  lands  that  are 
chiefly  valuable  for  building  stone  under  the  provisions  of  the  law  in  relation 
to  placer-mineral  claims:  Provided,  That  lands  reserved  for  the  benefit  of  the 
public  schools  or  donated  to  any  State  shall  not  be  subject  to  entry  under  this 
act.  [Act  of  Congress  approved  Aug.  4,  1892  (27  Stat.  L.,  348;  U.  S.  Comp. 
St.  1901,  p.  1434).] 

An  Act  to  amend  section  numbered  twenty- three  hundred  and  twenty-four  of 
the  Revised  Statutes  of  the  United  States  relating  to  mining  claims. 

Requirement  of  proof  of  expenditure  for  the  year  1893  suspended  ex- 
cept as  to  South  Dakota. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  the  provisions  of  section  num- 


ACTS   OF   CONGRESS.  553 

bered  twenty-three  hundred  and  twenty-four  of  the  Revised  Statutes  of  the 
United  States,  which  require  that  on  each  claim  located  after  the  tenth  <l:iy 
of  May,  eighteen  hundred  and  seventy-two,  and  until  patent  has  been  issued 
therefor,  not  less  than  one  hundred  dollars'  worth  of  labor  shall  be  performed 
or  improvements  made  during  each  year,  be  suspended  for  the  year  eighteen 
hundred  and  ninety-three,  so  that  no  mining  claim  which  has  been  regularly 
located  and  recorded  as  required  by  the  local  laws  and  mining  regulations  shall 
be  subject  to  forfeiture  for  nonperformance  of  the  annual  assessment  for  the 
year  eighteen  hundred  and  ninety-three:  Provided,  That  the  claimant  or  claim- 
ants of  any  mining  location,  in  order  to  secure  the  benefits  of  this  act  s1 
cause  to  be  recorded  in  the  office  where  the  location  notice  or  certificate  is  fiUnl 
on  or  before  December  thirty-first,  eighteen  hundred  and  ninety-three,  a  no- 
tice that  he  or  they,  in  good  faith  intend  to  hold  and  work  said  claim:  Pro- 
vided, however,  That  the  provisions  of  this  act  shall  not  apply  to  the  State 
of  South  Dakota. 

This  act  shall  take  effect  from  and  after  its  passage.  [Act  of  Congress  ap- 
proved Nov.  3,  1893  (28  Stat.  L.,  6).] 

An  Act  to  amend  section  numbered  twenty-three  hundred  and  twenty-four  of 
Revised  Statutes  of  the  United  States  relating  to  mining  claims. 

Requirement  of  proof  of  expenditure  for  the  year  1894  suspended  ex- 
cept as  to  South  Dakota. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  the  provisions  of  section  num- 
bered twenty-three  hundred  and  twenty-four  of  the  Revised  Statutes  of  the 
United  States,  which  require  that  on  each  claim  located  after  the  tenth  day  of 
May  eighteen  hundred  and  seventy-two,  and  until  patent  has  been  issued  there- 
for, not  less  than  one  hundred  dollars'  worth  of  labor  shall  be  performed  or 
improvements  made  during  each  year,  be  suspended  for  the  year  eighteen  hun- 
dred and  ninety-four,  so  that  no  mining  claim  which  has  been  regularly  located 
and  recorded  as  required  by  the  local  laws  and  mining  regulations  shall  be  sub- 
ject to  forfeiture  for  nonperformance  of  the  annual  assessment  for  the  year 
eighteen  hundred  and  ninety-four:  Provided,  That  the  claimant  or  claimants 
of  any  mining  location,  in  order  to  secure  the  benefits  of  this  act,  shall  cause  to 
be  recorded  in  the  office  where  the  location  notice  or  certificate  is  filed  on  or 
before  December  thirty-first,  eighteen  hundred  and  ninety-four,  a  notice  that 
he  or  they  in  good  faith  intend  to  hold  and  work  said  claim:  Provided,  how- 
ever, That  the  provisions  of  this  act  shall  not  apply  to  the  State  of  South 
Dakota.  [Act  of  Congress  approved  July  18,  1894  (28  Stat.  L.,  114).] 

Sec.  2.    That  this  act  shall  take  effect  from  and  after  its  passage. 

WICHITA   LANDS   (OKLAHOMA). 

************ 
That  the  laws  relating  to  the  mineral  lands  of  the  United  States  are  hereby 
extended  over  the  lands  ceded  by  the  foregoing  agreement.    [Act  Mar.  2,  1895, 
28  Stat.,  876-894-899.] 

An  Act  to  authorize  the  entry  and  patenting  of  lands  containing  petroleum 
and  other  mineral  oils  under  the  placer  mining  laws  of  the  United  States. 

Entry   and   patenting   of   lands    containing   petroleum   and  other   min- 
eral oils  under  the  placer-mining  laws. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  any  person  authorized  to  en- 


554  APPENDIX   A. 

ter  lands  under  the  mining  laws  of  the  United  States  may  enter  and  obtain 
patent  to  lands  containing  petroleum  or  other  mineral  oils,  and  chiefly  valu- 
able therefor,  under  the  provisions  of  the  laws  relating  to  placer  mineral 
claims:  Provided,  That  lands  containing  such  petroleum  or  other  mineral  oils 
which  have  heretofore  been  filed  upon,  claimed,  or  improved  as  mineral,  but 
not  yet  patented,  may  be  held  and  patented  under  the  provisions  of  this  act 
the  same  as  if  such  filing,  claim,  or  improvement  were  subsequent  to  the  date 
of  the  passage  hereof.  [Act  of  Congress  approved  Feb.  11,  1897  (29  Stat.  L. 
520 ;  U.  S.  Comp.  St.  1901,  p.  1434).] 

An  Act  making  appropriations  for  sundry  civil  expenses  of  the  Government 
for  the  fiscal  year  ending  June  thirtieth,  eighteen  hundred  and  ninety- 
eight,  and  for  other  purposes.  (30  Stat.,  34,  35,  36.) 

All  public  lands  heretofore  designated  and  reserved  by  the  President  of  the 
United  States  under  the  provisions  of  the  act  approved  March  third,  eighteen 
hundred  and  ninety-one  [vol.  26,  p.  1095],  the  orders  for  which  shall  be  and 
remain  in  full  force  and  effect,  unsuspended  and  unrevoked,  and  all  public 
lands  that  may  hereafter  be  set  aside  and  reserved  as  public  forest  reserves 
under  said  act,  shall  be  as  far  as  practicable  controlled  and  administered  in 
accordance  with  the  following  provisions: 

Forest  reservations,  when  to  be  established. 

No  public  forest  reservation  shall  be  established,  except  to  improve  and 
protect  the  forest  within  the  reservation,  or  for  the  purpose  of  securing  favor- 
able conditions  of  water  flows,  and  to  furnish  a  continuous  supply  of  tim- 
ber for  the  use  and  necessities  of  citizens  of  the  United  States ;  but  it  is  not 
the  purpose  or  intent  of  these  provisions,  or  of  the  act  providing  for  such  re- 
servations, to  authorize  the  inclusion  therein  of  lands  more  valuable  for  the 
mineral  therein,  or  for  agricultural  purposes,  than  for  forest  purposes. 
************ 

Use  of  timber,  etc.,  by  settlers,  etc. 

The  Secretary  of  the  Interior  may  permit,  under  regulations  to  be  prescribed 
by  him,  the  use  of  timber  and  stone  found  upon  such  reservations,  free  of 
charge,  by  bona  fide  settlers,  miners,  residents,  and  prospectors  for  minerals, 
for  firewood,  fencing,  buildings,  mining,  prospecting,  and  other  domestic  pur- 
poses, as  may  be  needed  by  such  persons  for  such  purposes ;  such  timber  to  be 
used  within  the  State  or  Territory,  respectively,  where  such  reservations  may 
be  located. 

Egress  and  ingress  of  settlers  -within  reservations,  etc. 

Nothing  herein  shall  be  construed  as  prohibiting  the  egress  or  ingress  of 
actual  settlers  residing  within  the  boundaries  of  such  reservations,  or  from 
crossing  the  same  to  and  from  their  property  or  homes ;  and  such  wagon  roads 
and  other  improvements  may  be  constructed  thereon  as  may  be  necessary  to 
reach  their  homes  and  to  utilize  their  property  under  such  rules  and  regula- 
tions as  may  be  prescribed  by  the  Secretary  of  the  Interior.  Nor  shall  any- 
thing herein  prohibit  any  person  from  entering  upon  such  forest  reservations 
for  all  proper  and  lawful  purposes,  including  that  of  prospecting,  locating, 
and  developing  the  mineral  resources  thereof:  Provided,  That  such  persons 
comply  with  the  rules  and  regulations  covering  such  forest  reservations. 
************ 

Restoration  of  mineral  or  agricultural  lands  to  the  public  domain. 

Upon  the  recommendation  of  the  Secretary  of  the  Interior,  with  the  ap- 
proval of  the  President,  after  sixty  days'  notice  thereof,  published  in  two 


ACTS   OF   CONGRESS.  555 

papers  of  general  circulation  in  the  State  or  Territory  wherein  any  for< ;  t 
reservation  is  situated,  and  near  the  said  reservation,  any  public  lands  em- 
braced within  the  limits  of  any  forest  reservation  which,  after  due  examination 
by  personal  inspection  of  a  competent  person  appointed  for  that  purpose  by 
the  Secretary  of  the  Interior,  shall  be  found  better  adapted  for  mining  or  for 
agricultural  purposes  than  for  forest  usage,  may  be  restored  to  the  public  do- 
main. And  any  mineral  lands  in  any  forest  reservation  which  have  been  or 
which  may  be  shown  to  be  such,  and  subject  to  entry  under  the  existing  min- 
ing laws  of  the  United  States  and  the  rules  and  regulations  applying  thereto. 
shall  continue  to  be  subject  to  such  location  and  entry,  notwithstanding  any 
provisions  herein  contained.  [Act  June  4,  1897,  30  Stat.  34  (U.  S.  Comp.  St. 
1901,  p.  1539).] 

An  Act  making  appropriations  for  current  and  contingent  expenses   of  the 
Indian  Department  and  fulfilling  treaty  stipulations  with  various  Indian 
tribes  for  the  fiscal  year  ending  June  thirtieth,   eighteen  hundred   and 
ninety-seven,  and  for  other  purposes. 
************ 

(Fort  Belknap  Indian  Reservation,  Montana.) 

Provisos:    Price— No  occupancy  prior  to  opening. 

Sec.  8.  *  *  *  That  upon  the  filing  in  the  United  States  local  land  office 
for  the  district  in  which  the  lands  surrendered  by  article  one  of  the  foregoing 
agreement  are  situated,  of  the  approved  plat  of  survey  authorized  by  this  sec- 
tion, the  lands  so  surrendered  shall  be  open  to  occupation,  location,  and  pur- 
chase, under  the  provisions  of  the  mineral-land  laws  only,  subject  to  the  sev- 
eral articles  of  the  foregoing  agreement:  Provided,  That  said  lands  shall  be 
sold  at  ten  dollars  per  acre:  And  provided  further,  That  the  terms  of  this 
section  shall  not  be  construed  to  authorize  the  occupancy  of  said  lands  for 
mining  purposes  prior  to  the  date  of  filing  said  approved  plat  of  sur- 
vey. *  *  * 

(Blackfeet  Indian  Reservation,  Montana.) 

Proviso:    No  occupancy  prior  to  opening. 

Sec.  9.  *  *  *  That  upon  the  filing  in  the  United  States  local  land  of- 
fice for  the  district  in  which  the  lands  surrendered  by  article  one  of  the  fore- 
going agreement  are  situated,  of  the  approved  plat  of  survey  authorized  by 
this  section,  the  lands  so  surrendered  shall  be  opened  to  occupation,  location, 
and  purchase  under  the  provisions  of  the  mineral-land  laws  only,  subject  to 
the  several  articles  of  the  foregoing  agreement:  Provided,  That  the  terms  of 
this  section  shall  not  be  construed  to  authorize  occupancy  of  said  lands  for 
mining  purposes  prior  to  the  date  of  filing  said  approved  plat  of  survey. 

(San  Carlos  Indian  Reservation,  Arizona.) 

Provisos:    No  occupancy  prior  to  opening— Preference  to  discoverers  of 
coal,  etc. 

Sec.  10.  *  *  *  That  upon  the  filing  in  the  United  States  local  land  of- 
fice for  the  district  in  which  the  lands  surrendered  by  article  one  of  the  fore- 
going agreement  are  situated,  of  the  approved  plat  of  survey  authorized  by 
this  section,  the  lands  so  surrendered  shall  be  opened  to  occupation,  location, 
and  purchase  under  the  provisions  of  the  mineral-land  laws  only,  subject 
to  the  several  articles  of  the  foregoing  agreement:  Provided,  That  the  terms 
of  this  section  shall  not  be  construed  to  authorize  occupancy  of  said  lands  for 
mining  purposes  prior  to  the  date  of  filing  said  approved  plat  of  survey:  Pro- 


556  APPENDIX   A. 

vided,  however,  That  any  person  who  in  good  faith  prior  to  the  passage  of 
this  act  had  discovered  and  opened,  or  located,  a  mine  of  coal  or  other  min- 
eral, shall  have  a  preference  right  of  purchase  for  ninety  days  from  and  after 
the  official  filing  in  the  local  laud  office  of  the  approved  plat  of  survey  provided 
for  by  this  section.  [Act  of  Congress  approved  June  10,  1896  (29  Stat,  321- 
3GO ;  act  of  Congress  June  7,  1897,  30  Stat.,  93).] 

An  Act  extending  the  homestead  laws  and  providing  for  right  of  way  for 
railroads  in  the  district  of  Alaska,  and  for  other  purposes. 
************ 

Mining   rights   in   Alaska  to  native-born  citizens   of  the   Dominion  of 
Canada. 

Sec.  13.  That  native-born  citizens  of  the  Dominion  of  Canada  shall  be  ac- 
corded in  said  district  of  Alaska  the  same  mining  rights  and  privileges  accord- 
ed to  citizens  of  the  United  States  in  British  Columbia  and  the  Northwest 
Territory  by  the  laws  of  the  Dominion  of  Canada  or  the  local  laws,  rules,  and 
regulations;  but  no  greater  rights  shall  be  thus  accorded  than  citizens  of 
the  United  States,  or  persons  who  have  declared  their  intention  to  become 
such,  may  enjoy  in  said  district  of  Alaska;  and  the  Secretary  of  the  Interior 
shall  from  time  to  time  promulgate  and  enforce  rules  and  regulations  to  carry 
this  provision  into  effect.  [Act  of  Congress  approved  May  14,  1898  (30  Stat. 
L.,  415 ;  U.  S.  Comp.  St.  1901,  p.  1424).] 

An  Act  making  further  provisions  for  a  civil  government  for  Alaska,  and  for 
other  purposes. 
************ 

"What  recorded. 

Sec.  15.  The  respective  recorders  shall,  upon  the  payment  of  the  fees  for 
the  same  prescribed  by  the  Attorney-General,  record  separately,  in  large  and 
well-bound  separate  books,  in  fair  hand: 

First.  Deeds,  grants,  transfers,  contracts  to  sell  or  convey  real  estate  and 
mortgages  of  real  estate,  releases  of  mortgages,  powers  of  attorney,  leases 
which  have  been  acknowledged  or  proved,  mortgages  upon  personal  property ; 
************ 

Ninth.  Affidavits  of  annual  work  done  on  mining  claims ; 
Tenth.  Notices  of  mining  location  and  declaratory  statements. 

Proviso:    Mining  claims— Where  instruments  recorded. 

Eleventh.  Such  other  writings  as  are  required  or  permitted  by  law  to  be 
recorded,  including  the  liens  of  mechanics,  laborers,  and  others:  Provided, 
Notices  of  location  of  mining  claims  shall  be  filed  for  record  within  ninety 
days  from  the  date  of  the  discovery  of  the  claim  described  in  the  notice,  and 
all  instruments  shall  be  recorded  in  the  recording  district  in  which  the  prop- 
erty or  subject-matter  affected  by  the  instrument  is  situated,  and  where  the 
property  or  subject-matter  is  not  situated  in  any  established  recording  district 
the  instrument  affecting  the  same  shall  be  recorded  in  the  office  of  the  clerk  of 
the  division  of  the  court  having  supervision  over  the  recording  division  in 
which  such  property  or  subject-matter  is  situated. 

************ 

Proviso:    Miners'  regulations  for  recording,  etc.— Recorder— Records  at 
Dyea,  etc.,  legalized. 

*  *  *  Provided,  Miners  in  any  organized  mining  district  may  make  rules 
and  regulations  governing  the  recording  of  notices  of  location  of  mining  claims, 


ACTS   OF   CONGRESS.  5^7 

water  rights,  flumes  and  ditches,  mill  sites  and  affidavits  of  labor,  not  in  con- 
flict with  this  act  or  the  general  laws  of  the  United  States;  and  nothing  in 
this  act  shall  be  construed  so  as  to  prevent  the  miners  in  any  regularly  or- 
ganized mining  district  not  within  any  recording  district  established  by  the 
court  from  electing  their  own  mining  recorder  to  act  as  such  until  a  recorder 
therefor  is  appointed  by  the  court:  Provided  further,  All  records  heretofore 
regularly  made  by  the  United  States  commissioner  at  Dyea,  Skagway,  and  the 
recorder  at  Douglas  City  not  in  conflict  with  any  records  regularly  made  with 
the  United  States  commissioner  at  Juneau,  are  hereby  legalized.  And  all  rec- 
ords heretofore  made  in  good  faith  in  any  regularly  organized  mining  dis- 
trict are  hereby  made  public  records,  and  the  same  shall  be  delivered  to  the 
recorder  for  the  recording  district  including  such  mining  district  within  six 
months  from  the  passage  of  this  act.  [Act  of  Congress  approved  June  6,  190O 
(31  Stat,  321-326-330).] 

Mining  laws — Provisos:    Gold,  etc.,   explorations  on  Bering  Sea — Min- 
ers' regulations — Not  to  conflict  with  federal  laws — Exclusive  per- 
mits to  mine  void,   etc.— Provision  reserving  roadway,  etc.,   not  to 
apply. 

Sec.  26.  The  laws  of  the  United  States  relating  to  mining  claims,  mineral 
locations,  and  rights  incident  thereto  are  hereby  extended  to  the  district  of 
Alaska:  Provided,  That  subject  only  to  such  general  limitations  as  may  be 
necessary  to  exempt  navigation  from  artificial  obstructions  all  land  and  shoal 
water  between  low  and  mean  high  tide  on  the  shores,  bays,  and  inlets  of  Ber- 
ing Sea,  within  the  jurisdiction  of  the  United  States,  shall  be  subject  to  ex- 
ploration and  mining  for  gold  and  other  precious  metals  by  citizens  of  the 
United  States,  or  persons  who  have  legally  declared  their  intentions  to  become 
such,  under  such  reasonable  rules  and  regulations  as  the  miners  in  organized 
mining  districts  may  have  heretofore  made  or  may  hereafter  make  governing 
the  temporary  possession  thereof  for  exploration  and  mining  purposes  until 
otherwise  provided  by  law:  Provided  further,  That  the  rules  and  regulations 
established  by  the  miners  shall  not  be  in  conflict  with  the  mining  laws  of 
the  United  States ;  and  no  exclusive  permits  shall  be  granted  by  the  Secretary 
of  War  authorizing  any  person  or  persons,  corporation,  or  company  to  excavate 
or  mine  under  any  of  said  waters  below  low  tide,  and  if  such  exclusive  per- 
mit has  been  granted  it  is  hereby  revoked  and  declared  null  and  void ;  but 
citizens  of  the  United  States  or  persons  who  have  legally  declared  their  in- 
tention to  become  such  shall  have  the  right  to  dredge  and  mine  for  gold  or 
other  precious  metals,  in  said  waters,  below  low  tide,  subject  to  such  general 
rules  and  regulations  as  the  Secretary  of  War  may  prescribe  for  the  preserva- 
tion of  order  and  the  protection  of  the  interests  of  commerce ;  such  rules  and 
regulations  shall  not,  however,  deprive  miners  on  the  beach  of  the  right  here- 
by given  to  dump  tailings  into  or  pump  from  the  sea  opposite  their  claims, 
except  where  such  dumping  would  actually  obstruct  navigation;  and  the 
reservation  of  a  roadway  sixty  feet  wide,  under  the  tenth  section  of  the  act 
of  May  fourteenth,  eighteen  hundred  and  ninety-eight,  entitled  "An  act  extend- 
ing the  homestead  laws  and  providing  for  right  of  way  for  railroads  in  the 
district  of  Alaska,  and  for  other  purposes."  [Vol.  30,  p.  413],  shall  not  apply 
to  mineral  lands  or  town  sites. 

*          *          »         *         *          *         *         * 


558  APPENDIX   A. 

Disposition  of  Comanche,  Kiowa,  and  Apache  lands  under  an  agreement 
ratified  by  act  of  Congress  of  June  6,  190O  (31  Stat.,  672,  676- 
68O). 

************ 

That  should  any  of  said  lands  allotted  to  said  Indians,  or  opened  to  settle- 
ment under  this  act,  contain  valuable  mineral  deposits,  such  mineral  de- 
posits shall  be  open  to  location  and  entry,  under  the  existing  mining  laws  of 
the  United  States,  upon  the  passage  of  this  act,  and  the  mineral  laws  of  the 
United  States  are  hereby  extended  over  said  lands. 

An  Act  extending  the  mining  laws  to  saline  lands. 
Mining  laws  extended  to  saline  lands. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  all  unoccupied  public  lands 
of  the  United  States  containing  salt  springs,  or  deposits  of  salt  in  any  form, 
and  chiefly  valuable  therefor,  are  hereby  declared  to  be  subject  to  location 
and  purchase  under  the  provisions  of 'the  law  relating  to  placer-mining  claims: 
Provided,  That  the  same  person  shall  not  locate  or  enter  more  than  one  claim 
hereunder.  [Act  of  Congress  approved  Jan.  31,  1901  (31  Stat.  L.,  745 ;  U.  S. 
Coinp.  St.  1901,  p.  1435).] 

An  Act  making  appropriations  for  the  current  and  contingent  expenses  of  the 
Indian  Department  and  for  fulfilling  treaty  stipulations  with  various  In- 
dian tribes  for  the  fiscal  year  ending  June  thirtieth,  nineteen  hundred 
and  three,  and  for  other  purposes. 

Uintah  and  White  River  Utes— Allotment  of  irrigable  land— Unallot- 
ed  lands  restored  to  public  domain — Provisos:  Homestead  entries — 
Mineral  leases — Raven  Mining  Company — Application  of  proceeds 
from  sales. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  *  *  *  That  the  Secretary  of 
the  Interior,  with  the  consent  thereto  of  the  majority  of  the  adult  male  In- 
dians of  the  Uintah  and  the  White  River  tribes  of  Ute  Indians,  to  be  ascer- 
tained as  soon  as  practicable  by  an  inspector,  shall  cause  to  be  allotted  to 
each  head  of  a  family  eighty  acres  of  agricultural  land  which  can  be  irrigated 
and  forty  acres  of  such  land  to  each  other  member  of  said  tribes,  said  allot- 
ments to  be  made  prior  to  October  first,  nineteen  hundred  and  three,  on  which 
date  all  the  unallotted  lands  within  said  reservation  shall  be  restored  to  the 
public  domain:  Provided,  That  persons  entering  any  of  said  land  under  the 
homestead  law  shall  pay  therefor  at  the  rate  of  one  dollar  and  twenty-five 
cents  per  acre:  And  provided  further,  That  nothing  herein  contained  shall 
impair  the  rights  of  any  mineral  lease  which  has  been  approved  by  the  Sec- 
retary of  the  Interior,  or  any  permit  heretofore  issued  by  direction  «f  the  Sec- 
retary of  the  Interior  to  negotiate  with  said  Indians  for  a  mineral  lease;  but 
any  person  or  company  having  so  obtained  such  approved  mineral  lease  or  such 
permit  to  negotiate  with  said  Indians  for  a  mineral  lease  on  said  reservation, 
pending  such  time  and  up  to  thirty  days  before  said  lands  are  restored  to  the 
public  domain  as  aforesaid,  shall  have  in  lieu  of  such  lease  or  permit  the 
preferential  right  to  locate  under  the  mining  laws  not  to  exceed  six  hundred 
and  forty  acres  of  contiguous  mineral  land,  except  the  Raven  Mining  Com- 
pany, which  may  in  lieu  of  its  lease  locate  one  hundred  mining  claims  of  the 
-character  of  mineral  mentioned  in  its  lease;  and  the  proceeds  of  the  sale  of 


ACTS   OF   CONGRESS.  559 

the  lands  so  restored  to  the  public  domain  shall  be  applied,  first  to  the  reim- 
bursement of  the  United  States  for  any  moneys  advanced  to  said  Indians  to 
carry  into  effect  the  foregoing  provisions;  and  the  remainder,  under  the  di- 
rection of  the  Secretary  of  the  Interior,  shall  be  used  for  the  benefit  of  said 
Indians.  [Act  of  Congress  approved  May  27,  1902  (32  Stat.  L.,  203).] 
************ 

An  Act  defining  what  shall  constitute  and  providing  for  assessments  on  oil 
mining  claims. 

Assessment  required  for  oil  mining  claims. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  where  oil  lands  are  located  un- 
der the  provisions  of  title  thirty-two,  chapter  six,  Revised  Statutes  of  the 
United  States,  as  placer  mining  claims,  the  annual  assessment  labor  upon  such 
claims  may  be  done  upon  any  one  of  a  group  of  claims  lying  contiguous  and 
owned  by  the  same  person  or  corporation,  not  exceeding  five  claims  in  all: 
Provided,  That  said  labor  will  tend  to  the  development  or  to  determine  the 
oil-bearing  character  of  such  contiguous  claims.  [Act  of  Congress  approved 
Feb.  12,  1903  (32  Stat.  L.,  825 ;  U.  S.  Cornp.  St.  Supp.  1907,  p.  478).] 

An  Act  making  appropriations  for  the  current  and  contingent  expenses  of  the 
Indian  Department  and  for  fulfilling  treaty  stipulations  with  various  In- 
dian tribes  for  the  fiscal  year  ending  June  thirtieth,  nineteen  hundred 
and  four,  and  for  other  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  *  *  * 

Uncompaligre  Indian  Reservation— Mining  claims  located  on  prior  to 
Jan.  1,  1891,  valid— Patents  to  issue  on  relocations,  etc.,  of  claims 
—Claims  located  after  Jan.  1,  1891,  invalid — Sale  of  remainder  of 
mineral  lands— Restrictions. 

That  in  the  lands  within  the  former  Uncompahgre  Indian  Reservation,  in 
the  State  of  Utah,  containing  gilsonite,  asphaltum,  elaterite,  or  other  like  sub- 
stances, which  were  reserved  from  location  and  entry  by  provision  in  the  act 
of  Congress  entitled  "An  act  making  appropriations  for  the  current  and  con- 
tingent expenses  of  the  Indian  Department  and  for  fulfilling  treaty  stipula- 
tions with  various  Indian  tribes,  for  the  fiscal  year  ending  June  thirtieth, 
eighteen  hundred  and  ninety-eight  and  for  other  purposes,"  approved  June 
seventh,  eighteen  hundred  and  ninety-seven  [30  Stat,  p.  87],  all  discoveries  and 
locations  of  any  such  mineral  lands  by  qualified  persons  prior  to  January  first, 
eighteen  hundred  and  ninety-one,  not  previously  discovered  and  located,  who 
recorded  notices  of  such  discoveries  and  locations  prior  to  January  first,  eigh- 
teen hundred  and  ninety-one,  either  in  the  State  of  Colorado,  or  in  the  office 
of  the  county  recorder  of  Uintah  County,  Utah,  shall  have  all  the  force  and 
effect  accorded  by  law  to  locations  of  mining  claims  upon  the  public  domain. 
All  such  locations  may  hereafter  be  perfected,  and  patents  shall  be  issued 
therefor  upon  compliance  with  the  requirements  of  the  mineral  land  laws, 
provided  that  the  owners  of  such  locations  shall  relocate  their  respective 
claims  and  record  the  same  in  the  office  of  the  county  recorder  of  Uintah  Coun- 
ty, Utah,  within  ninety  days  after  the  passage  of  this  act.  All  locations  of 
any  such  mineral  lands  made  and  recorded  on  or  subsequent  to  January  first, 
eighteen  hundred  and  ninety-one,  are'  hereby  declared  to  be  null  and  void ; 


560  APPENDIX   A. 

and  the  remainder  of  the  lands  heretofore  reserved  as  aforesaid  because  of 
the  mineral  substances  contained  in  them,  in  so  far  as  the  same  may  be  within 
even-numbered  sections,  shall  be  sold  and  disposed  of  in  tracts  not  exceeding 
forty  acres,  or  a  quarter  of  a  quarter  of  a  section,  in  such  manner  and  upon 
such  terms  and  with  such  restrictions  as  may  be  prescribed  in  a  proclamation 
of  the  President  of  the  United  States  issued  for  that  purpose  not  less  than  one 
hundred  and  twenty  days  after  the  passage  of  this  act,  and  not  less  than  ninety 
days  before  the  time  of  sale  or  disposal,  and  the  balance  of  said  lands  and 
also  all  the  mineral  therein  are  hereby  specifically  reserved  for  future  action 
of  Congress.  [Act  of  Congress  approved  Mar.  3,  1903  (32  Stat.  L.,  998).] 
************ 

An  Act  for  the  survey  and  allotment  of  lands  now  embraced  within  the  limits 
of  the  Flathead  Indian  Reservation,  in  the  State  of  Montana,  and  the  sale 

and  disposal  of  all  surplus  lands  after  allotment. 

*  *  *  *  *  *  *  *  *  * 

Classification,    etc.,   of  lands. 

Sec.  5.  That  said  commissioners  shall  then  proceed  to  personally  inspect  and 
classify  and  appraise,  by  the  smallest  legal  subdivisions  of  forty  acres  each,  all 
of  the  remaining  lands  embraced  within  said  reservation.  In  making  such 
classification  and  appraisement  said  lands  shall  be  divided  into  the  following 
classes:  First,  agricultural  land  of  the  first  class;  second,  agricultural  land  of 
the  second  class ;  third,  timber  lands,  the  same  to  be  lands  more  valuable  for 
their  timber  than  for  any  other  purpose;  fourth,  mineral  lands;  and  fifth, 
grazing  lands. 

*  *  *  *  *  *  *  *  *  * 

Disposal  of  lands—Timber  and   school  lands   excepted. 

Sec.  8.  That  when  said  commission  shall  have  completed  the  classification 
and  appraisement  of  all  of  said  lands  and  the  same  shall  have  been  approved 
by  the  Secretary  of  the  Interior,  the  land  shall  be  disposed  of  under  the  pro- 
visions of  the  homestead,  mineral,  and  town-site  laws  of  the  United  States, 
except  such  of  said  lands  as  shall  have  been  classified  as  timber  lands,  and  ex- 
cepting sections  sixteen  and  thirty-six  of  each  township,  which  are  hereby 
granted  to  the  State  of  Montana  for  school  purposes.  *  *  * 

********** 

Mineral  land  entries— Proviso:     Exceptions. 

Sec.  10.  That  only  mineral  entry  may  be  made  on  such  of  said  lands  as  said 
commission  shall  designate  and  classify  as  mineral  under  the  general  provisions 
of  the  mining  laws  of  the  United  States,  and  mineral  entry  may  also  be  made 
on  any  of  said  lands  whether  designated  by  said  commission  as  mineral  lands 
or  otherwise,  such  classification  by  said  commission  being  only  prima  facie 
evidence  of  the  mineral  or  nonmineral  character  of  the  same;  Provided,  That 
no  such  mineral  locations  shall  be  permitted  upon  any  lands  allotted  in  several- 
ty  to  an  Indian.  [Act  of  Congress  approved  Apr.  23,  1904  (33  Stat.,  302).] 

An  Act  to  ratify  and  amend  an  agreement  with  the  Indians  of  the  Crow  Reser- 
vation, in  Montana,  and  making  appropriations  to  carry  the  same  into 

effect. 
********** 

Town-site   and   mineral   lands. 

Sec.  5.  *  *  *  And  provided  further,  That  the  price  of  said  lands  shall  be 
four  dollars  per  acre,  when  entered  under  the  homestead  laws.  *  *  *  Lands 


ACTS   OF   CONGRESS.  561 

entered  under  the  town-site  and  miner.il  land  laws  shall  be  paid  for  in  amount 
and  manner  as  provided  by  said  laws,  but  in  no  event  at  a  less  price  than  that 
fixed  herein  for  such  lands,  if  entered  under  the  homestead  laws.  *  *  *  [Act 
of  Congress  approved  Apr.  27,  1904  (33  Stat.,  352).] 

An  Act  to  amend  section  twenty-three  hundred  and  twenty-seven  of  the  Re- 
vised Statutes  of  the  United  States,  relating  to  lands. 

[Act  April  28,  1904,  c.  1796  (33  Stat.  545),  amends  said  section  to  read  as 
set  forth  at  page  543,  supra.] 

An  Act  to  authorize  the  sale  and  disposition  of  surplus  or  unallotted  lands  of 
the  Yakirna  Indian  Reservation,  in  the  State  of  Washington. 
********** 

Appraisal  of  unallotted  lauds,    etc. — Mineral  lands — Provisos:      Lands 
not  classified  as  mineral  lands — Restriction. 

Sec.  3.  That  the  residue  of  the  lands  of  said  reservation — that  is,  the  lands 
not  allotted  and  not  reserved — shall  be  classified  under  the  direction  of  the 
Secretary  of  the  Interior  as  irrigable  lauds,  grazing  lands,  timber  lands,  or 
arid  lands,  and  shall  be  appraised  under  their  appropriate  classes  by  legal  sub- 
divisions, with  the  exception  of  the  mineral  lands,  which  need  not  be  apprais- 
ed, and  the  timber  on  the  lands  classified  as  timber  lands  shall  be  appraised 
separately  from  the  land.  The  basis  for  the  appraisal  of  the  timber  shall  be 
the  amount  of  standing  merchantable  timber  thereon,  which  shall  be  ascertain- 
ed and  reported. 

********** 

The  lands  classified  as  mineral  lands  shall  be  subject  to  location  and  dis- 
posal under  the  mineral-land  laws  of  the  United  States:  Provided,  That 
lands  not  classified  as  mineral  may  also  be  located  and  entered  as  mineral 
lands,  subject  to  approval  by  the  Secretary  of  the  Interior  and  conditioned 
upon  the  payment,  within  one  year  from  the  date  when  located,  of  the 
appraised  value  of  the  lands  per  acre  fixed  prior  to  the  date  of  such  lo- 
cation, but  at  not  less  than  the  price  fixed  by  existing  law  for  mineral 
lands:  Provided  further,  That  no  such  mineral  locations  shall  be  permit- 
ted on  any  lands  allotted  to  Indians  in  several ty  or  reserved  for  any  pur- 
pose as  herein  authorized.  [Act  of  Congress  approved  Dec.  21,  1904  (33 
Stat  595).] 

An  Act  to  ratify  and  amend  an  agreement  with   the  Indians   residing  on 
the  Shoshone  or  Wind  River  Indian  Reservation  in  the  State  of  Wyoming 
and  to  make  appropriations  for  carrying  the  same  into  effect. 
*  *  *  *  *  *  *  *,*  * 

Opening  of  lands   to   entry— Proclamation— Town-site,   coal,   and  min- 
eral entries. 

Sec.  2.  That  the  lands  ceded  to  the  United  States  under  the  said  agree- 
ment shall  be  disposed  of  under  the  provisions  of  the  homestead,  town- 
site,  coal,  and  mineral  land  laws  of  the  United  States  and  shall  be  opened 
to  settlement  and  entry  by  proclamation  of  the  President.  *  *  * 

********** 

*     *    *    Lands  entered  under  the  town-site,  coal,  and  mineral  land  laws 

shall  be  paid  for  in  amount  and  manner  as  provided  by  said  laws.     Notice 

of  location  of  all  mineral  entries  shall  be  filed  in  the  looal  land  office  of  the 

district  in  which  the  lands  covered  by  the  location  are  situated,  and  unless 

COST.MIN.L..— 36 


562  APPENDIX   A. 

entry  and  payment  shall  be  made  within  three  years  from  the  date  of 
location  all  rights  thereunder  shall  cease ;  *  *  *  that  all  lands,  except 
mineral  and  coal  lands,  herein  ceded  remaining  undisposed  of  at  the  ex- 
piration of  five  years  from  the  opening  of  said  lands  to  entry  shall  be  sold 
to  the  highest  bidder  for  cash  at  not  less  than  one  dollar  per  acre  under 
rules  and  regulations  to  be  prescribed  by  the  Secretary  of  the  Interior. 
*  *  *  [Act  of  Congress  approved  Mar.  3,  1905  (33  Stat,  1016).] 

An  Act  to  authorize  the  sale  and  disposition  of  surplus  or  unallotted  lands 
of  the  diminished  Colville  Indian  Reservation,  in  the  State  of   Wash- 
ington, and  for  other  purposes. 
********** 

Mineral  lands. 

Sec.  3.  That  upon  the  completion  of  said  allotments  to  said  Indians  the 
residue  or  surplus  lands — that  is,  lands  not  allotted  or  reserved  for  Indian 
school,  agency,  or  other  purposes — of  the  said  diminished  Colville  Indian 
Reservation  shall  be  classified  under  the  direction  of  the  Secretary  of  the 
Interior  as  irrigable  lands,  grazing  lands,  timber  lands,  mineral  lands,  or 
arid  lands,  and  shall  be  appraised  under  their  appropriate  classes  by  legal 
subdivisions,  with  the  exception  of  the  lands  classed  as  mineral  lands,  which 
need  not  be  appraised,  and  which  shall  be  disposed  of  under  the  general 
mining  laws  of  the  United  States.  [Act  of  Congress  approved  Mar.  22,  1906.J 

COEUE  D'ALENE  INDIAN  LANDS. 

(Indian  appropriation  act  for  fiscal  year  ending  June  30,  1907.) 
********** 

Mineral  lands — Coal  and  oil  deposits  reserved. 

*  *  *  Provided  further,  That  the  general  mining  laws  of  the  United 
States  shall  extend  after  the  approval  of  this  act  to  any  of  said  lands, 
and  mineral  entry  may  be  made  on  .any  of  said  lands,  but  no  such  mineral 
selection  shall  be  permitted  upon  any  lands  allotted  in  severalty  to  the  In- 
dians: Provided  further,  That  all  the  coal  or  oil  deposits  in  or  under  the 
lands  on  the  said  reservation  shall  be  and  remain  the  property  of  the 
United  States,  and  no  patent  that  may  be  issued  under  the  provisions  of 
this  or  any  other  act  of  Congress  shall  convey  any  .title  thereto.  *  *  * 
[Act  of  June  21,  1906  (34  Stat.  336).] 

An  Act  to  amend  the  laws  governing  labor  or  improvements  upon  mining 
claims  in  Alaska. 

Alaska — Annual  improvements,  etc.,  required  on  mining  claims — Filing 
affidavits — Contents — Prima  facie  evidence  of  performance  of  work, 
etc. — Forfeiture — Officer  before  •whom  affidavits  may  be  made — Time 
of  filing— Fee. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  during  each  year  and  until 
patent  has  been  issued  therefor,  at  least  one  hundred  dollars'  worth  of 
labor  shall  be  performed  or  improvements  made  on,  or  for  the  benefit  or 
development  of,  in  accordance  with  existing  law,  each  mining  claim  in  the 
district  of  Alaska  heretofore  or  hereafter  located.  And  the  locator  or  owner 
of  such  claim  or  some  other  person  having  knowledge  of  the  facts  may  also 
make  and  file  with  the  said  recorder  of  the  district  in  which  the  claims 


ACTS   OF   CONGRESS.  563 

shall  be  situate  an  affidavit  showing  the  performance  of  labor  or  making 
of  improvements  to  the  amount  of  one  hundred  dollars  as  aforesaid  and 
specifying  the  character  and  extent  of  such  work.  Such  affidavit  shall  set 
forth  the  following:  First,  the  name  or  number  of  the  mining  claims  and 
where  situated ;  second,  the  number  of  days'  work  done  and  the  character 
and  value  of  the  improvements  placed  thereon;  third,  the  date  of  the  per- 
formance of  such  labor  and  of  making  improvements;  fourth,  at  whose  in- 
stance the  work  was  done  or  the  improvements  made ;  fifth,  the  actual 
amount  paid  for  work  and  improvement,  and  by  whom  paid  when  the 
same  was  not  done  by  the  owner.  Such  affidavit  shall  be  prima  facie  evi- 
dence of  the  performance  of  such  work  or  making  of  such  improvements, 
but  if  such  affidavits  be  not  filed  within  the  time  fixed  by  this  act  the 
burden  of  proof  shall  be  upon  the  claimant  to  establish  the  performance 
of  such  annual  work  and  improvements.  And  upon  failure  of  the  locator  or 
owner  of  any  such  claim  to  comply  with  the  provisions  of  this  act,  as  to 
performance  of  work  and  improvements,  such  claim  shall  become  forfeited 
and  open  to  location  by  others  as  if  no  location  of  the  same  had  ever  been 
made.  The  affidavits  required  hereby  may  be  made  before  any  officer 
authorized  to  administer  oaths,  and  the  provisions  of  sections  fifty-three 
hundred  and  ninety-two  and  fifty-three  hundred  and  ninety-three  of  the 
Revised  Statutes  are  hereby  extended  to  such  affidavits.  Said  affidavits 
shall  be  filed  not  later  than  ninety  days  after  the  close  of  the  year  in  which 
such  work  is  performed.  [Act  of  Mar.  2,  1907  (35  Stat,  1243).] 

Sec.  2.  That  the  recorders  for  the  several  divisions  or  districts  of  Alaska 
shall  collect  the  sum  of  one  dollar  and  fifty  cents  as  a  fee  for  the  filing, 
recording,  and  indexing  said  annual  proofs  of  work  and  improvements  for 
each  claim  so  recorded.  [Ibid.] 

An  Act  to  encourage  the  development  of  coal  deposits  in  the  Territory  of 
Alaska. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  all  persons,  their  heirs  or  as- 
signs, who  have  in  good  faith  personally  or  by  an  attorney  in  fact  made  lo- 
cations of  coal  land  in  the  Territory  of  Alaska  in  their  own  interest,  prior  to 
November  twelfth,  nineteen  hundred  and  six,  or  in  accordance  with  circular 
of  instructions  issued  by  the  Secretary  of  the  Interior  May  sixteenth,  nineteen 
hundred  and  seven,  may  consolidate  their  said  claims  or  locations  by  including 
in  a  single  claim,  location,  or  purchase  not  to  exceed  two  thousand  five 
hundred  and  sixty  acres  of  contiguous  lands,  not  exceeding  in  length  twice  the 
width  of  the  tract  thus  consolidated  and  for  this  purpose  such  persons,  their 
heirs  or  assigns,  may  form  associations  or  corporations  who  may  perfect  entry 
of  and  acquire  title  to  such  lands  in  accordance  with  the  other  provisions  of 
law  under  which  said  locations  were  originally  made :  Provided,  That  no  cor- 
poration shall  be  permitted  to  consolidate  its  claims  under  this  Act  unless 
seventy-five  per  centum  of  its  stock  shall  be  held  by  persons  qualified  to  en- 
ter coal  lands  in  Alaska.  [Act  of  Congress  approved  May  28,  1908.] 

Sec.  2.  That  the  United  States  shall,  at  all  times,  have  the  preference 
right  to  purchase  so  much  of  the  product  of  any  mine  or  mines  opened  upon 
the  lands  sold  under  the  provisions  of  this  Act  as  may  be  necessary  for  the 
use  of  the  Army  and  Navy,  and  at  such  reasonable  and  remunerative  price  as 
may  be  fixed  by  the  President;  but  the  producers  of  any  coal  so  purchased 
who  may  be  dissatisfied  with  the  price  thus  fixed  shall  have  the  right  to 


564  APPENDIX  A. 

ecute  suits  against  the  United  States  in  the  Court  of  Claims  for  the  recovery 
of  any  additional  sum  or  sums  they  may  claim  as  justly  due  upon  such  pur- 
chase. [Ibid.] 

Sec.  3.  That  if  any  of  the  lands  or  deposits  purchased  under  the  provi- 
sions of  this  Act  shall  be  owned,  leased,  trusteed,  possessed,  or  controlled  by 
any  device  permanently,  temporarily,  directly,  indirectly,  tacitly,  or  in  any 
manner  whatsoever  so  that  they  form  part  of,  or  in  any  way  effect  any  combi- 
nation, or  are  in  anywise  controlled  by  any  combination  in  the  form  of  an  un- 
lawful trust,  or  form  the  subject  of  any  contract  or  conspiracy  in  restraint  of 
trade  in  the  mining  or  selling  of  coal,  or  of  any  holding  of  such  lands  by  any 
individual,  partnership,  association,  corporation,  mortgage,  stock  ownership, 
or  control,  in  excess  of  two  thousand  five  hundred'  and  sixty  acres  in  the  dis- 
trict of  Alaska,  the  title  thereto  shall  be  forfeited  to  the  United  States  by  pro- 
ceedings instituted  by  the  Attorney-General  of  the  United  States  in  the  courts 
for  that  purpose.  [Ibid.] 

Sec.  4.  That  every  patent  issued  under  this  Act  shall  expressly  recite  the 
terms  and  conditions  prescribed  in  sections  two  and  three  hereof.  [Ibid.] 


APPENDIX  B. 


LAND  OFFICE  RULES  AND  REGULATIONS  ON  MINING 
APPROVED  MAY  21,  1907. 


REGULATIONS. 

NATURE  AND  EXTENT  OF  MINING  CLAIMS. 

1.  Mining  claims  are  of  two  distinct  classes:     Lode  claims  and  placers. 

LODE  CLAIMS. 

2.  The  status  of  lode  claims  located  or  patented  previous  to  the  10th  day 
of  May,  1872,  is  not  changed  with  regard  to  their  extent  along  the  lode  or 
width  of  surface;  but  the  claim  is  enlarged  by  sections  2322  and  2328,  by 
investing  the  locator,  his  heirs  or  assigns,  with  the  right  to  follow,  upon 
the  conditions  stated  therein,  all  veins,  lodes,  or  ledges,  the  top  or  apex  of 
which  lies  inside  of  the  surface  lines  of  his  claim. 

3.  It   is   to   be   distinctly   understood,   however,   that   the  law  limits   the 
possessory   right  to   veins,   lodes,   or  ledges,   other  than   the  one  named  in 
the  original  location,  to  such  as  were  not  adversely  claimed  on  May  10,  1872, 
and  that  where  such  other  vein  or  ledge  was  so  adversely  claimed  at  that 
date  the  right  of  the  party  so  adversely  claiming  is  in  no  way  impaired  by 
the  provisions  of  the  Revised  Statutes. 

4.  From  and  after  the  10th  May,   1872,  any  person  who  is  a  citizen  of 
the  United  States,  or  who  has  declared  his  intention  to  become  a  citizen, 
may  locate,  record,  and  hold  a  mining  claim  of  fifteen  hundred  linear  feet 
along  the  course  of   any  mineral  vein  or  lode  subject  to  location;    or  an 
association  of  persons,   severally  qualified  as  above,  may  make  joint   loca- 
tion of  such  claim  of  fifteen  hundred  feet,  but  in  no  event  can  a  location 
of  a  vein  or  lode  made  after  the  10th  day  of  May,  1872,  exceed  fifteen  hundred 
feet  along  the  course  thereof,  whatever  may  be  the  number  of  persons  "com- 
posing the  association. 

5.  With    regard    to   the   extent    of   surface    ground   adjoining   a    vein    or 
lode,  and  claimed  for  the  convenient  working  thereof,  the  Revised  Statutes 
provide  that  the  lateral   extent  of  locations  of  veins  or  lodes  made  after 
May  10,  1872,  shall  in  no  case  exceed  three  hundred  feet  on  each  side  of 
the  middle  of  the  vein  at  the  surface,  and  that  no  such  surface  rights  shall 
be  limited  by  any  mining  regulations  to  less  than  twenty-five  feet  on  each 
side  of  the  middle  of  the  vein  at  the  surface,  except  where  adverse  rights 
existing  on  the  10th  May,  1872,  may  render  such  limitation  necessary;  the 
end  lines  of  such  claims  to  be  in  all  cases  parallel   to  ea»h  other.     Said 
lateral  measurements  can  not  extend  beyond  three  hundred  feet  on  either 

(565) 


566  APPENDIX    B. 

side  of  the  middle  of  the  vein  at  the  surface,  or  such  distance  as  is  allowed 
by  local  laws.  For  example:  400  feet  can  not  be  taken  on  one  side  and 
200  feet  on  the  other.  If,  however,  300  feet  on  each  side  are  allowed, 
and  by  reason  of  prior  claims  but  100  feet  can  be  taken  on  one  side,  the 
locator  will  not  be  restricted  to  less  than  300  feet  on  the  other  side;  and 
when  the  locator  does  not  determine  by  exploration  where  the  middle  of 
the  vein  at  the  surface  is,  his  discovery  shaft  must  be  assumed  to  mark 
such  point. 

6.  By  the  foregoing  it  will  be  perceived  that  no  lode  claim  located  after 
the   10th    May,   1872,   can   exceed   a   parallelogram   fifteen   hundred   feet   in 
length  by  six  hundred  feet  in  width,  but  whether  surface  ground  of  that 
width,  can  be  taken  depends  upon  the  local  regulations  or  state  or  territorial 
laws  in  force  in  the  several  mining  districts;  and  that  no  such  local  regula- 
tions or  state  or  territorial  laws  shall  limit  a  vein  or  lode  claim  to  less 
than  fifteen  hundred  feet  along  the  course  thereof,  whether  the  location  is 
made  by   one  or  more  persons,   nor  can  surface   rights  be  limited  to   less 
than   fifty   feet  in   width   unless   adverse   claims  existing  on  the   10th  day 
of  May,  1872,  render  such  lateral  limitation  necessary. 

7.  Locators   can   not   exercise   too   much  care  in   defining  their   locations 
at  the  outset,  inasmuch  as  the  law  requires  that  all  records  of  mining  loca- 
tions made  subsequent  to  May  10,  1872,  shall  contain  the  name  or  names 
of  the  locators,  the  date  of  the  location,  and  such  a  description  of  the  claim 
or  claims  located,  by  reference  to  some  natural  object  or  permanent  monu- 
ment, as  will  identify  the  claim. 

8.  No   lode   claim   shall   be  located   until   after   the   discovery   of   a    vein 
or    lode    within    the    limits    of    the    claim,    the    object    of    which    provision 
is  evidently  to  prevent  the  appropriation  of  presumed  mineral   ground  for 
speculative  purposes,  to  the  exclusion  of  bona  fide  prospectors,  before  suffi- 
cient work  has  been  done  to  determine  whether  a  vein  or  lode  really  exists. 

9.  The    claimant    should,    therefore,    prior    to    locating    his    claim,    unless 
the  vein  can  be  traced  upon  the  surface,  sink  a  shaft  or  run  a  tunnel  or 
drift  to  a  sufficient  depth  therein  to  discover  and  develop  a  mineral-bearing 
vein,  lode,   or  crevice;  should  determine,  if  possible,  the  general   course  of 
such  vein  in  either  direction  from  the  point  of  discovery,  by  which  direction 
he  will  be  governed  in  marking  the  boundaries  of  his  claim  on  the  surface. 
His  location  notice  should  give  the  course  and  distance  as  nearly  as  prac- 
ticable  from   the   discovery   shaft  on   the  claim   to   some   permanent,   well- 
known  points   or   objects,   such,   for   instance,   as   stone  monuments,    blazed 
trees,  the  confluence  of  streams,  point  of  intersection  of  well-known  gulches, 
ravines,  or  roads,  prominent  buttes,   hills,   etc.,   which   may  be  in  the  im- 
mediate vicinity,  and  which  wTill  serve  to  perpetuate  and  fix  the  locus  of 
the  claim  and  render  it  susceptible  of  identification   from   the   description 
thereof  given  in  the  record  of  locations  in  the  district,  and  should  be  duly 
recorded. 

10.  In    addition    to   the   foregoing   data,    the    claimant    should    state    the 
names  of  adjoining  claims,  or,  if  none  adjoin,  the  relative  positions  of  the 
nearest  claims;  should  drive  a  post  or  erect  a  monument  of  stones  at  each 
corner  of  his   surface  ground,   and  at  the  point  of  discovery  or  discovery 
shaft  should  fix  a  post,  stake,  or  board,  upon  which  should  be  designated 
the  name  of  the  lode,  the  name  or  names  of  the  locators,  the  number  of 
feet  claimed,  and  in  which  direction  from  the  point  of  discovery ;  it  being 
essential  that  the  location  notice  filed  for  record,  in  addition  to  the  fore- 


LAND   OFFICE   REGULATIONS.  567 

going  description,  should  state  whether  the  entire  claim  of  fifteen  hundred 
feet  is  taken  on  one  side  of  the  point  of  discovery,  or  whether  it  is  partly 
upon  one  and  partly  upon  the  other  side  thereof,  and  in  the  latter  cas^, 
how  many  feet  are  claimed  upon  each  side  of  such  discovery  point. 

11.  The  location  notice  must  be  filed  for  record  in  all  respects  as  required 
by   the  state  or  territorial  laws  and  local  rules  and  regulations,   if  there 
be  any. 

12.  In  order  to  hold  the  possessory  title  to  a  mining  claim  located  prior  to 
May  10,  1872,  the  law  requires  that  ten  dollars  shall  be  expended  annually 
in  labor  or  improvements  for  each  one  hundred  feet  in  length  along  the  vein 
or  lode.     In  order  to  hold  the  possessory   right  to   a   location   made   since 
May   10,   1872,  not  less  than  one  hundred  dollars'  worth  of  labor   must  be 
performed    or    improvements    made    thereon    annually.      Under    the    provi- 
sions of  the  act  of   Congress  approved  January  22,   1SSO,   the  first  annual 
expenditure  becomes  due  and  must  be  performed  during  the  calendar  year 
succeeding  that  in  which  the  location  was  made.     Where  a  number  of  con- 
tiguous claims  are  held  in  common,  the  aggregate  expenditure  that  would 
be  necessary   to   hold  all   the  claims,   may  be  made  upon   any   one   claim. 
Cornering  locations  are  held  not  to  be  contiguous. 

13.  Failure  to  make  the  expenditure  or  perform  the  labor  required  upon 
a  location  made  before  or  since  May  10,  1872,  will  subject  a  claim  to  re- 
location, unless  the  original  locator,  his  heirs,  assigns,  or  legal  representatives 
have  resumed  work  after  such  failure  and  before  relocation. 

14.  Annual  expenditure  is  not  required  subsequent  to  entry,  the  date  of 
issuing  the  patent  certificate  being  the  date  contemplated  by  statute. 

15.  Upon   the  failure  of  any   one  of  several  co-owners  to  contribute  his 
proportion    of    the    required    expenditures,    the    co-owners,    who    have    per- 
formed the  labor  or  made  the  improvements  as  required,  may,  at  the  ex- 
piration of  the  year,  give  such  delinquent  co-owner  personal  notice  in  writing, 
or  notice  by  publication  in  the  newspaper  published  nearest  the  claim  for 
at  least  once  a  week  for  ninety  days;  and  if  upon  the  expiration  of  ninety 
days  after  such  notice  in  writing,  or  upon  the  expiration  of  one  hundred 
and   eighty   days   after   the   first  newspaper   publication   of   notice,   the   de- 
linquent  co-owner  shall   have   failed  to   contribute  his  proportion   to   meet 
such    expenditures    or    improvements,    his    interest    in    the    claim    by    law 
passes  to  his  co-owners  who  have  made  the  expenditures  or  improvements 
as  aforesaid.     Where  a  claimant  alleges  ownership  of  a  forfeited  interest 
under    the   foregoing   provision,    the   sworn   statement   of   the   publisher   as 
to  the  facts  of  publication,  giving  dates  and  a  printed  copy  of  the  notice 
published,  should  be  furnished,  and  the  claimant  must  swear  that  the  de- 
linquent   co-owner    failed   to   contribute   his   proper   proportion   within   the 
period  fixed  by  the  statute. 

TUNNELS. 

16.  The  effect  of  section  2323,  Revised  Statutes,  is  to  give  the  proprietors 
of  a  mining  tunnel  run  in  good  faith  the  possessory  right  to  fifteen  hundred 
feet  of  any  blind  lodes  cut,  discovered,  or  intersected  by  such  tunnel,  which 
were  not  previously  known  to  exist,  within  three  thousand  feet  from  the 
face  or  point  of  commencement  of  such  tunnel,  and  to  prohibit  other  parties, 
after  the  commencement  of  the  tunnel,   from   prospecting  for   and  making 
locations  of  lodes  on  the  line  thereof   and  within  said  distance   of   three 
thousand  feet,  unless  such  lodes  appear  upon  the  surface  or  were  previously 


568  APPENDIX   B. 

known  to  exist.  The  term  "face,"  as  used  in  said  section,  is  construed  and 
held  to  mean  the  first  working  face  formed  in  the  tunnel,  and  to  signify  the 
point  at  which  the  tunnel  actually  enters  cover;  it  being  from  this  point 
that  the  three  thousand  feet  are  to  be  counted  upon  which  prospecting  is 
prohibited  as  aforesaid. 

17.  To  avail  themselves  of  the  benefits  of  this  provision  of  law,  the  pro- 
prietors of  a  mining  tunnel  will  be  required,  at  the  time  they  enter  cover 
as  aforesaid,  to  give  proper  notice  of  their  tunnel  location  by  erecting  a 
substantial   post,  board,   or  monument  at   the   face  or  point  of   commence- 
ment thereof,  upon   which   should  be  posted  a   good   and  sufficient  notice, 
giving   the   names   of   the   parties   or   company   claiming   the   tunnel   right; 
the  actual  or  proposed  course  or  direction  of  the  tunnel,  the  height  and  width 
thereof,  and  the  course  and  distance  from  such  face  or  point  of  commence- 
ment to   some  permanent  well-known   objects   in   the  vicinity  by  which   to 
fix  and   determine  the   locus  in  manner  heretofore  set  forth  applicable   to 
locations  of  veins  or  lodes,  and  at  the  time  of  posting  such  notice  they  shall, 
in  order  that  miners  or  prospectors  may  be  enabled  to  determine  whether  or 
not  they  are  within  the  lines   of  the  tunnel,   establish  the  boundary  lines 
thereof,  by  stakes  or  monuments  placed  along  such  lines  at  proper  intervals, 
to  the  terminus  of  the  three  thousand  feet  from  the  face  or  point  of  com- 
mencement of  the  tunnel,  and  the  lines  so  marked  will  define  and  govern 
as  to  specific  boundaries  within  which  prospecting  for  lodes  not  previously 
known  to  exist  is  prohibited  while  work  on  the  tunnel  is  being  prosecuted 
with  reasonable  diligence. 

18.  A  full  and  correct  copy  of  such  notice  of  location  defining  the  tunnel 
claim  must  be  filed  for  record  with  the  mining  recorder  of  the  district,  to 
which  notice  must  be  attached  the  sworn  statement  or  declaration  of  the 
owners,  claimants,   or  projectors  of  such  tunnel,  setting  forth  the  facts  in 
the  case;  stating  the  amount  expended  by  themselves  and  their  predecessors 
in  interest  in  prosecuting  work  thereon;  the  extent  of  the  work  performed, 
and  that  it  is  bona  fide  their  intention  to  prosecute  work  on  the  tunnel 
so  located  and  described  with  reasonable  diligence  for  the  development  of 
a  vein  or  lode,  or  for  the  discovery  of  mines,  or  both,  as  the  case  may  be. 
This  notice  of  location  must  be  duly  recorded,   and,  with   the  said  sworn 
statement  attached,  kept  on  the  recorder's  files  for  future  reference. 


PLACER   CLAIMS. 

19.  But  one  discovery  of  mineral  is  required  to  support  a  placer  location, 
whether  it  be  of  twenty  acres  by  an  individual,  or  of  one  hundred  and  sixty 
acres  or  less  by  an  association  of  persons. 

20.  The  act  of  August  4,   1892,   extends  the  mineral-land  laws  so   as  to 
bring   lands   chiefly   valuable   for   building   stone   within   the   provisions   of 
said  law  by  authorizing  a  placer  entry  of  such  lands.     Registers  and  re- 
ceivers should  make  a  reference  to  said  act  on  the  entry  papers  in  the  case 
of  all  placer  entries  made  for  lands  containing  stone  chiefly  valuable  for 
building  purposes.     Lands  reserved  for  the  benefit  of  public  schools  or  do- 
nated to  any  state  are  not  subject  to  entry  under  said  act. 

21.  The   act  of  February   11,   1897,   provides   for   the  location  and   entry 
of  public  lauds  chiefly  valuable  for  petroleum  or  other  mineral  oils,  and  entries 
of  that  nature  made  prior  to  the  passage  of  said  act  are  to  be  considered 
as  though  made  thereunder. 


LAND   OFFICE    REGULATIONS.  5G9 

22.  By    section    2330    authority    is   given    for   subdividing   forty-acre    l«»t-Ml 
subdivisions  into  ten-acre  tracts.    These  ten-acre  tracts  should  be  considered 
and  dealt  with  as  legal  subdivisions,  and  an  applicant  having  a  placer  claim 
which  conforms  to  one  or  more  of  such  ten-acre  tracts,  contiguous  in  case 
of  two  or  more  tracts,  may  make  entry  thereof,  after  the  usual  proceedings, 
without  further  survey  or  plat. 

23.  In  subdividing  forty-acre  legal  subdivisions,   the  ten-acre  tracts  must 
be  in  square  form,  with  lines  at  right  angles  with  the  lines  of  the  public 
surveys;  and  the  notice  given  of  the  application  must  be  specific  and  ac- 
curate in  description. 

24.  A  ten-acre  subdivision  may  be  described,   for  instance  if  situated   in 
the  extreme  northeast  of  the  section,  as  the  "X.  E.  %  of  the  N.  E.  %  of  the 
N.  E.  }4"  of  the  section,  or,  in  like  manner,  by  appropriate  terms,  wherever 
situated;  but,  in  addition  to  this  description,  the  notice  must  give  all  the 
other  data  required  in  a  mineral  application,  by  which  parties  may  be  put 
on  inquiry  as  to  the  land  sought  to  be  patented.     The  proofs  submitted  with 
applications  must  show  clearly  the  character  and  extent  of  the  improvements 
upon  the  premises. 

25.  The  proof  of  improvements  must  show  their  value  to  be  not  less  than 
five  hundred  dollars  and  that  they  were  made  by  the  applicant  for  patent 
or  his  grantors.     This  proof  should  consist  of  the  affidavit  of  two  or  more 
disinterested    witnesses.     The   annual   expenditure   to   the    amount   of   $100. 
required  by  section  2324,  Revised  Statutes,  must  be  made  upon  placer  claims 
as  well  as  lode  claims. 

26.  Applicants  for  patent  to  a  placer  claim,  who  are  also  in  possession  of  a 
known  vein  or  lode  included  therein,  must  state  in  their  application  that 
the  placer  includes  such  vein  or   lode.     The  published  and  posted  notices 
must  also  include  such  statement.     If  veins  or  lodes  lying  within  a  placer 
location  are  owned  by  other  parties,  the  fact  should  be  distinctly  stated  in 
the  application  for  patent  and  in  all  the  notices.     But  in  all  cases,  whether 
the   lode   is  claimed  or   excluded,   it   must   be  surveyed   and   marked   upon 
the  plat,   the   field  notes   and   plat   giving  the   area   of   the   lode  claim   or 
claims  and  the  area  of  the  placer  separately.     An  application  which  omits 
to  claim  such  known  vein  or  lode  must  be  construed  as  a  conclusive  declara- 
tion that  the  applicant  has  no  right  of  possession  to  the  vein  or  lode.    Where 
there  is  no  known  lode  or  vein,  the  fact  must  appear  by  the  affidavit,  of 
two  or  more  witnesses. 

27.  By  section  2330  it  is  declared  that  no  location  of  a  placer  claim,  made 
after  July  9,  1870,  shall  exceed  one  hundred  and  sixty  acres  for  any  one 
person  or  association  of  persons,  which  location  shall  conform  to  the  United 
States  surveys. 

28.  Section  2331  provides  that  all  placer-mining  claims  located  after  May 
10,   1872,   shall   conform   as  nearly   as  practicable  with   the  United    States 
system   of   public    land   surveys    and    the    rectangular   subdivisions   of    such 
surveys,  and  such  locations  shall  not  include  more  than  twenty  acres  for  each 
individual  claimant. 

29.  The  foregoing  provisions  of  law  are  construed  to  mean  that  after  the 
9th  day  of  July,  1870,  no  location  of  a  placer  claim  can  be  made  to  exceed 
one  hundred  and  sixty  acres,  whatever  may  be  the  number  of  locators  as- 
sociated together,  or  whatever  the  local  regulations  of  the  district  may  al- 
low;  and  that  from  and  after  May  10,  1872,  no  location  can  exceed  twenty 
acres  for  each  individual  participating  therein;  that  is,  a  location  by  two 


570  APPENDIX   B. 

persons   can    not   exceed   forty   acres,    and   one   by   three   persons    can   not 
exceed  sixty  acres. 

30.  The  regulations  hereinbefore  given  as  to  the  manner  of  marking  loca- 
tions on  the  ground,  and  placing  the  same  on  record,  must  be  observed  in 
the  case  of  placer  locations  so  far  as  the  same  are  applicable,  the  law  re- 
quiring, however,  that  all  placer  mining  claims  located  after  May  10,   1872, 
slinll  conform  as  near  as  practicable  with  the  United  States  system  of  public 
land  surveys  and  the  rectangular  subdivisions  of  such  surveys,  whether  the 
locations  are  upon  surveyed  or  unsurveyed  lands. 

REGULATIONS  UNDER  SALINE  ACT. 

31.  Under  the  act  approved  January  31,  1901,  extending  the  mining  laws 
to  saline  lands,   the  provisions  of  the  law  relating  to  placer-mining  claims 
are  extended  to  all  states  and  territories  and  the  district  of  Alaska,  so  as 
to  permit  the  location  and  purchase  thereunder  of  all  unoccupied  public  lands 
containing  salt  springs,  or  deposits  of  salt  in  any  form,  and  chiefly  valuable 
therefor,  with  the  proviso,  "That  the  same  person  shall  not  locate  or  enter 
more  than  one  claim  hereunder." 

32.  Rights  obtained  by  location  under  the  placer-mining  laws  are  assignable, 
and  the  assignee  may  make  the  entry  in  his  own  name ;  so,  under  this  act  a 
person  holding  as  assignee  may  make  entry  in  his  own  name:     Provided,  he 
has  not  held  under  this  act,  at  any  time,  either  as  locator  or  entryman,  any 
other   lands ;    his   right    is    exhausted   by    having    held   under    this    act   any 
particular  tract,  either  as  locator  or  entryman,  either  as  an  individual  or  as 
a  member  of  an  association.     It  follows,  therefore,  that  no  application  for 
patent  or  entry,  made  under  this  act,  shall  embrace  more  than  one  single 
location. 

33.  In  order  that  the  conditions  imposed  by  the  proviso,  as  set  forth  in 
the  above  paragraph,  may  duly  appear,  the  notice  of  location  presented  for 
record  and  the  application  for  patent  must  each  contain  a  specific  statement 
under  oath  by  each  person  whose  name  appears  therein  that  he  never  has, 
either  as  an  individual  or  as  a  member  of  an  association,  located  or  entered 
any   other  lands   under  the  provisions   of   this   act.     Assignments   made  by 
persons  who  are  not  severally  qualified  as  herein  stated  will  not  be  recognized. 

PROCEDURE  TO  OBTAIN  PATENT  TO  MINERAL  LANDS. 

LODE  CLAIMS. 

.  34.  The  claimant  is  required,  in  the  first  place,  to  have  a  correct  survey  of 
his  claim  made  under  authority  of  the  surveyor-general  of  the  state  or  ter- 
ritory in  which  the  claim  lies,  such  survey  to  show  with  accuracy  the 
exterior  surface  boundaries  of  the  claim,  which  boundaries  are  required 
to  be  distinctly  marked  by  monuments  on  the  ground.  Four  plats  and  one 
copy  of  the  original  field  notes  in  each  case  will  be  prepared  by  the  sur- 
veyor-general;  one  plat  and  the  original  field  notes  to  be  retained  in  the 
office  of  the  surveyor-general;  one  copy  of  the  plat  to  be  given  the  claimant 
for  posting  upon  the  claim;  one  plat  and  a  copy  of  the  field  notes  to  be 
given  the  claimant  for  filing  with  the  proper  register,  to  be  finally  trans- 
mitted by  that  officer,  with  other  papers  in  the  case,  to  this  office,  and  one 
plat  to  be  sent  by  the  surveyor-general  to  the  register  of  the  proper  land 
district,  to  be  retained  on  his  files  for  future  reference.  As  there  is  no 


LAND   OFFICE    REGULATIONS.  571 

resident  surveyor-general  for  the  state  of  Arkansas,  applications  for  the  sur- 
vey of  mineral  claims  in  said  state  should  be  made  to  the  Commissioner  of 
this  office,  who,  under  the  law,  is  ex  offlcio  the  U.  S.  surveyor-general. 

35.  The   survey   and   plat   of  mineral    claims   required   to  be   filed   in    the 
proper    land    office   with    application    for   patent    must   be    made   subsequent 
to  the  recording  of  the  location  of  the  claim  (if  the  laws  of  the  state  or 
territory    or   the   regulations   of   the    mining   district   require   the   notice    of 
location  to  be  recorded),  and  when  the  original  location  is  made  by  survey 
of  a   United  States  mineral  surveyor  such  location  survey  can  not  be  sub- 
stituted for  that  required  by  the  statute,  as  above  indicated. 

36.  The    surveyors-general    should    designate    all    surveyed   mineral    claims 
by  a  progressive  series  of  numbers,  beginning  with  survey  No.  37,  irrespective 
as  to  whether  they  are  situated  on  surveyed  or  unsurveyed  lands,  the  claim 
to  be  so  designated  at  date  of  issuing  the  order   therefor,   in  addition   to 
the  local  designation  of  the  claim ;  it  being  required  in  all  cases  that  the 
plat  and  field  notes  of  the  survey  of  a  claim  must,  in  addition  to  the  reference 
to  permanent  objects  in  the  neighborhood,  describe  the  locus  of  the  claim 
with  reference  to  the  lines  of  public  surveys  by  a  line  connecting  a  corner 
of  the  claim  with  the  nearest  public  corner  of  the  United   States  surveys, 
unless  such  claim  be  on  unsurveyed  lands  at  a  distance  of  more  than  two 
miles  from  such  public  corner,  in  which  latter  case  it  should  be  connected 
with  a  United  States  mineral  monument.     Such  connecting  line  must  not  be 
more   than   two   miles   in   length,    and   should   be   measured   on    the   ground 
direct   between   the  points,    or  calculated   from   actually   surveyed    traverse 
lines  if  the  nature  of  the  country   should  not  permit  direct  measurement. 
If   a   regularly   established   survey   corner   is  within   two  miles  of  a   claim 
situated   on   unsurveyed   lands,   the   connection   should   be   made   with   such 
corner  in  preference  to  a  connection  with  a  United  States  mineral   monu- 
ment.    The  connecting  line  or  traverse  line  must  be  surveyed  by  the  mineral 
surveyor  at  the  time  of  his  making  the  particular  survey  and  be  made  a 
part  hereof. 

37.  (a)  Promptly  upon  the  approval  of  a  mineral  survey  the  surveyor-gen- 
eral will  advise  both  this  office  and  the  appropriate  local  land  office,  by  letter 
(Form  4 — 286),   of  the  date  of  approval,  number  of  the  survey,  name  and 
area  of  the  claim,  name  and  survey  number  of  each  approved  mineral  survey 
with   which   actually   in   conflict,   name   and    address   of   the   applicant   for 
survey,    and   name    of   the    mineral,    surveyor   who   made    the   survey;     and 
will   also   briefly   describe  therein  the   locus  of   the   claim,   specifying  each 
legal    subdivision   or   portion    thereof,    when   upon   surveyed   lands,    covered 
in  whole  or  in  part  by  the  survey ;  but  hereafter  no  segregation  of  any  such 
claim  upon  the  official  township-survey  records  will  be  made  until  mineral 
entry  has  been  made  and  approved  for  patent,  unless  otherwise  directed  by 
this  office. 

(b)  Upon  application  to  make  agricultural  entry  of  the  residue  of  any 
original  lot  or  legal  subdivision  of  forty  acres,  reduced  by  mining  claims  for 
which  patent  applications  have  been  filed  and  which  residue  has  been  al- 
ready relotted  in  accordance  therewith,  the  local  officers  will  accept  and 
approve  the  application  as  usual,  if  found  to  be  regular.  When  such  an 
application  is  filed  for  any  such  original  lot  or  subdivision,  reduced  in  avail- 
able area  by  duly  asserted  mining  claims  but  not  yet  relotted  accordingly,  the 
local  officers  will  promptly  advise  this  office  thereof;  and  will  also  report 
and  identify  any  pending  application  for  mineral  patent  affecting  such  sub- 
division which  the  agricultural  applicant  does  not  desire  to  contest.  The 


572  APPENDIX   B. 

surveyor-general  will  thereupon  be  advised  by  this  office  of  such  mining 
claims,  or  portions  thereof,  as  are  proper  to  be  segregated,  and  directed  to 
at  once  prepare,  upon  the  usual  drawing-paper  township  blank,  diagram  of 
amended  township  survey  of  such  original  lot  or  legal  forty-acre  subdivision 
so  made  fractional  by  such  mineral  segregation,  designating  the  agricultural 
portion  by  appropriate  lot  number,  beginning  with  No.  1  in  each  section  and 
giving  the  area  of  each  lot,  and  will  forthwith  transmit  one  approved  copy 
to  the  local  land  office  and  one  to  this  office.  In  the  meantime  the  local 
officers  will  accept  the  agricultural  application  (if  no  other  objection  ap- 
pears), suspend  it  with  reservation  of  all  rights  of  the  applicant  if  continu- 
ously asserted  by  him,  and  upon  receipt  of  amended  township  diagram  will 
approve  the  application  (if  then  otherwise  satisfactory)  as  of  the  date  of 
filing,  corrected  to  describe  the  tract  as  designated  in  the  amended  survey. 

(c)  The  register  and  receiver  will  allow  no  agricultural  claim  for  any 
portion  of  an  original  lot  or  legal  forty-acre  subdivision,  where  the  reduced 
area  is  made  to  appear  by  reason  of  approved  surveys  of  mining  claims  and 
for  which  applications  for  patent  have  not  been  filed,  until  there  is  sub- 
mitted by  such  agricultural  applicant  a  satisfactory  showing  that  such 
surveyed  claims  are  in  fact  mineral  in  character ;  and  applications  to  have 
lands  asserted  to  be  mineral,  or  mining  locations,  segregated  by  survey, 
with  the  view  to  agricultural  appropriation  of  the  remainder,  will  be  made 
to  the  register  and  receiver  for  submission  to  the  Commissioner  of  the  Gen- 
eral Land  Office,  for  his  consideration  and  direction,  and  must  be  supported 
by  the  affidavit  of  the  party  in  interest,  duly  corroborated  by  two  or  more 
disinterested  persons,  or  by  such  other  or  further  evidence  as  may  be  re- 
quired in  any  case,  that  the  lands  sought  to  be  segregated  as  mineral  are 
in  fact  mineral  in  character ;  otherwise,  in  the  absence  of  satisfactory  showing 
in  any  such  case,  such  original  lot  or  legal  subdivision  will  be  subject  to 
agricultural  appropriation  only.  When  any  such  showing  shall  be  found  to  be 
satisfactory  and  the  necessary  survey  is  had,  amended  township  diagram 
will  be  required  and  made  as  prescribed  in  the  preceding  section. 

38.  The  following  particulars  should  be  observed  in  the  survey  of  every 
mining  claim: 

(1)  The  exterior  boundaries  of  the  claim,  the  number  of  feet  claimed  along 
the  vein,  and,  as  nearly  as  can  be  ascertained,  the  direction  of  the  vein,  and 
the  number  of  feet  claimed  on  the  vein  in  each  direction  from  the  point 
of  discovery  or  other  well-defined  place  on  the  claim  should  be  represented 
on  the  plat  of  survey  and  in  the  field  notes. 

(2)  The  intersection  of  the  lines  of  the  survey  with  the  lines  of  conflicting 
prior  surveys  should  be  noted  in  the  field  notes  and  represented  upon  the  plat. 

(3)  Conflicts  with  unsurveyed  claims,  where  the  applicant  for  survey  does 
not  claim  the  area  in  conflict,  should  be  shown  by  actual  survey. 

(4)  The  total  area  of  the  claim  embraced  by  the  exterior  boundaries  should 
be  stated,  and  also  the  area  in  conflict  with  each  intersecting  survey,  sub- 
stantially as  follows: 

Acres. 

Total  area  of  claim 10.50 

Area  in  conflict  with  survey  No.  302 i.5r> 

Area  in  conflict  with  survey  No.  948 2.3: 1 

Area  in  conflict  with  Mountain  Maid  lode  mining  claim,  unsurveyed.  . . .       1.48 

It  does  not  follow  that  because  mining  surveys  are  required  to  exhibit  all 
conflicts  with  prior  surveys  the  areas  of  conflict  are  to  be  excluded.  The 
field  notes  and  plat  are  made  a  part  of  the  application  for  patent,  and  care 


LAND   OFFICE  REGULATIONS.  573 

should  be  taken  that  the  description  does  not  inadvertently  exclude  portions 
intended  to  be  retained.  The  application  for  patent  should  state  the  por- 
tions to  be  excluded  in  express  terms. 

39.  The  claimant  is  then  required  to  post  a  copy  of  the  plat  of  such  survey 
in  a  conspicuous  place  upon  the  claim,  together  with  notice  of  his  intention 
to  .apply  for  a  patent  therefor,  which  notice  will  give  the  date  of  posting, 
the  name  of  the  claimant,  the  name  of  the  claim,  the  number  of  the  survey, 
the  mining  district  and  county,  and  the  names  of  adjoining  and  conflicting 
claims  as  shown  by  the  plat  survey.     Too  much  care  can  not  be  exercised 
in  the  preparation  of  this  notice,  inasmuch  as  the  data  therein  are  to  be 
repeated-  in  the  other  notices  required  by  the  statute,  and  upon  the  accuracy 
and   completeness   of   these   notices   will   depend,    in   a   great   measure,    the 
regularity  and  validity  of  the  proceedings  for  patent. 

40.  After  posting  the  said  plat  and  notice  upon  the  premises,  the  claimant 
will  file  with  the  proper  register  and  receiver  a  copy  of  such  plat  and  the 
field  notes  of  survey  of  the  claim,  accompanied  by  the  affidavit  of  at  least 
two  credible  witnesses  that  such  plat  and  notice  are  posted  conspicuously 
upon  the  claim,  giving  the  date  and  place  of  such  posting;  a  copy  of  the 
notice  so  posted  to  be  attached  to  and  form  a  part  of  said  affidavit. 

41.  Accompanying  the  field  notes  so  filed  must  be  the  sworn  statement  of 
the  claimant  that  he  has  the  possessory  right  to  the  premises  therein  de- 
scribed, in  virtue  of  a  compliance  by  himself  (and  by  his  grantors,  if  he 
claims  by  purchase)  with  the  mining  rules,  regulations,  and  customs  of  the 
mining  district,   state,   or  territory   in  which    the  claim  lies,   and   with   the 
mining  laws  of  Congress  ;    such  sworn  statement  to  narrate  briefly,  but  as 
clearly   as  possible,   the  facts   constituting   such  compliance,   the   origin   of 
his  possession,  and  the  basis  of  his  claim  to  a  patent. 

42.  This  sworn  statement  must  be   supported  by  a   copy  of  the  location 
notice,  certified  by  the  officer  in  charge  of  the  records  where  the  same  is 
recorded,  and  where  the  applicant  for  patent  claims  the  interests  of  others 
associated   with   him   in  making  the  location,  or   as   a  purchaser,   in   addi- 
tion to  the  copy  of  the  location  notice,  must  be  furnished  a  complete  ab- 
stract of  title  as   shown   by   the  record  in  the  office   where  the   transfers 
are  by  law  required  to  be   recorded,   certified   to  by   the  officer  in  charge 
of  the  record  under  his  official  seal.    The  officer  should  also   certify  that 
no  conveyances  affecting  the  title  to  the  claim   in  question   appear  of  rec- 
ord  other   than   those   set   forth   in   the   abstract,   which   abstract   shall   be 
brought  down  to  the  date   of  the  application   for  patent.     Where   the  ap- 
plicant claims  as  sole  locator  and  does  not  furnish  an  abstract  of  title,  his 
affidavit  should  be  furnished  to  the  effect  tliat  he  has  disposed  of  no  interest 
in  the  land  located.  1 


December  28,  1907,  rule  42  of  the  Mining  Regulations,  approved  May  21, 
1907.  was  amended  to  read  as  follows  : 

"42.  This  sworn  statement  must  be  supported  by  a  copy  of  each  location  notice, 
certified  by  the  legal  custodian  of  the  record  thereof,  and  also  by  an  abstract  of 
title  of  each  claim,  completed  to  the  date  of  filing  said  statement  and  certified  by 
the  legal  custodian  of  the  records  of  transfers,  or  by  a  duly  authorized  abstractor 
of  titles.  The  certificate  must  state  that  no  conveyances  affecting  the  title  to  the 
claim  or  claims  appear  of  record  other  than  those  set  forth. 

"Abstractors  will  be  required  to  attach  to  each  abstract  certified  by  them  a  cer- 
tificate stating  that  they  have  filed  in  the  office  of  the  Commissioner  of  the  Gen- 
eral Land  Office  a  certified  copy  of  the  existing  statute  by  which  they  are  author- 
ized to  compile  abstracts  of  title,  and  evidence  in  the  form  of  a  certificate  by  the 
proper  State,  Territorial,  or  county  officer  that  they  have  complied  with  the  re- 
quirements of  such  statute." 


374  APPENDIX   B. 

43.  In  the  event  of  the  mining  records  in  any  case  having  been  destroyed 
by  fire  or  otherwise  lost,  affidavit  of  the  fact  should  be  made,  and  secondary 
evidence  of  possessory  title  will  be  received,  which  may  consist  of  the  affidavit 
of  the  claimant,  supported  by  those  of  any  other  parties  cognizant  of  the 
facts  relative  to  his  location,  occupancy,  possession,  improvements,  etc. ;  and 
in  such  case  of  lost  records,  any  deeds,  certificates  of  location  or  purchase, 
or   other  evidence  which  may  be  in  the  claimant's  possession  and  tend  to 
establish  his  claim,  should  be  filed. 

44.  Before    receiving   and   filing   an    application    for    mineral   patent   local 
officers  will  be  particular  to  see  that  it  includes  no  land  which  is  embraced 
in    a   prior   or   pending   application   for   patent   or   entry,   or   for   any    lands 
embraced   in  a    railroad   selection,   or   for   which   publication   is  pending  or 
has   been    made   by    any    other   claimants,    and   if,    in    their   opinion,    after 
investigation, ,  it  should   appear  that  a   mineral  application  should  not,  for 
these  or  other  reasons,   be  accepted  and  filed,   they  should  formally  reject 
the  same,  giving  the  reasons  therefor,  and  allow  the  applicant  thirty  days 
for  appeal  to  this  office  under  the  Rules  of  Practice. 

Local  officers  will  give  prompt  and  appropriate  notice  to  the  railroad 
grantee  of  the  filing  of  every  application  for  mineral  patent  which  em- 
braces any  portion  of  an  odd-numbered  section  of  surveyed  lands  within  the 
primary  limits  of  a  railroad  land  grant,  and  of  every  such  application  em- 
bracing any  portion  of  unsurveyed  lands  within  such  limits  (except  as  to 
any  such  application  which  embraces  a  portion  or  portions  of  those  ascertained 
or  prospective  odd-numbered  sections  onljr,  within  the  limits  of  the  grant 
in  Montana  and  Idaho  to  the  Northern  Pacific  Railroad  Company,  which  have 
been  classified  as  mineral  under  the  act  of  February  26,  1895,  without  protest 
by  the  company  within  the  time  limited  by  the  statute  or  the  mineral  classifi- 
cation whereof  has  been  approved). 

Should  the  railroad  grantee  file  protest  and  apply  for  a  hearing  to  determine 
the  character  of  the  land  involved  in  any  such  application  for  mineral 
patent,  proceedings  thereunder  will  be  had  in  the  usual  manner. 

Any  application  for  mineral  patent,  however,  which  embraces  lands  pre- 
viously listed  or  selected  by  a  railroad  company  will  be  disposed  of  as 
provided  by  the  first  section  of  this  paragraph,  and  the  applicant  afforded 
opportunity  to  protest  and  apply  for  a  hearing  or  to  appeal. 

Notice  should  be  given  to  the  duly  authorized  representative  of  the  railroad 
grantee,  in  accordance  with  rule  17  of  practice.  When  the  claims  applied 
for  are  upon  unsurveyed  land,  the  burden  of  proving  that  they  are  situate 
within  prospective  odd-numbered  sections  will  rest  upon  the  railroad. 

Evidence  of  service  of  notice  should  be  filed  with  the  record  in  each  case. 

45.  Upon  the  receipt  of  these  papers,  if  no  reason  appears  for  rejecting 
the  application,  the  register  will,  at  the  expense  of  the  claimant  (who  must 
furnish  the  agreement  of  the  publisher  to  hold  applicant  for  patent  alone 
responsible  for  charges  of  publication),  publish  a  notice  of  such  application 
for  the  period  of  sixty  days  in  a  newspaper  published  nearest  to  the  claim, 
and  will  post  a  copy  of  such  notice  in  his  office  for  the  same  period.    When 
the  notice  is  published  in  a  weekly  newspaper,  nine  consecutive  insertions 
are  necessary ;  when  in  a  daily  newspaper,  the  notice  must  appear  in  each 
issue  for  sixty-one  consecutive  issues.     In  both  cases  the  first  day  *f  issue 
must  be  excluded  in  estimating  the  period  of  sixty  days. 

4G.  The  notices  so  published  and  posted  must  embrace  all  the  data  given 
in  the  notice  posted  upon  the  claim.  In  addition  to  such  data  the  published 


LAND   OFFICE    REGULATIONS.  575 

notice  must  further  indicate  the  locus  of  the  claim  by  giving  the  connecting 
line,  as  shown  by  the  field  notes  and  plat,  between  a  corner  of  the  claim  and 
a  United  States  mineral  monument  or  a  corner  of  the  public  survey,  and 
thence  the  boundaries  of  the  claim  by  courses  and  distances. 

47.  The  register  shall  publish   the  notice  of  application  for  patent  in   a 
paper  of  established  character  and  general  circulation,  to  be  by  him  designated 
as  being  the  newspaper  published  nearest  the  land. 

48.  The  claimant  at  the  time  of  filing  the  application  for  patent,  or  at  any 
time  within  the  sixty  days  of  publication,  is  required  to  file  with  the  register 
a  certificate  of  the  surveyor-general  that  not  less  than  five  hundred  dollars' 
worth   of  labor   has   been  expended   or  improvements   made,   by   the  appli- 
cant or  his  grantors,  upon  each  location  embraced  in  the  application,  or  if 
the  application  embraces  several  contiguous  locations  held  in  common,  that 
an  amount  equal  to  five  hundred  dollars  for  each  location  has  been  so  ex- 
pended upon,  and  for  the  benefit  of,  the  entire  group;  that  the  plat  filed  by 
the  claimant  is  correct;  that  the  field  notes  of  the  survey,  as  filed,  furnish 
such   an   accurate  description   of   the  claim    as   will,    if   incorporated   in   a 
patent,  serve  to  fully  identify  the  premises,  and  that  such  reference  is  made 
therein    to    natural    objects    or    permanent    monuments    as    will    perpetuate 
and  fix  the  locus  thereof:     Provided,  that  as  to  all  applications  for  patents 
made  and  passed  to  entry  before  July  1,  1898,  or  which  are  by  protests  or 
adverse  claims  prevented  from  being  passed  to  entry  before  that  time,  where 
the   application   embraces   several    locations   held   in    common,    proof   of   an 
expenditure  of  five  hundred  dollars  upon  the  group  will  be  sufficient,  and 
an  expenditure  of  that  amount  need  not  be  shown  to  have  been  made  upon, 
or  for  the  benefit  of,  each  location  embraced  in  the  application. 

49.  The  surveyor-general  may  derive  his  information  upon  which  to  base 
his  certificate  as  to  the  value  of  labor  expended  or  improvements  made  from 
the  mineral  surveyor  who  makes  the  actual  survey  and  examination  upon 
the  premises,   and  such  mineral  surveyor  should  specify  with  particularity 
and  full  detail  the  character  and  extent  of  such  improvements,  but  further 
or  other  evidence  may  be  required  in  any  case. 

50.  It  will  be  convenient  to  have  this  certificate  indorsed  by  the  surveyor- 
general,  both  upon  the  plat  and  field  notes  of  survey  filed  by  the  claimant 
as  aforesaid. 

51.  After  the  sixty  days'  period  of  newspaper  publication  has  expired,  the 
claimant  will  furnish  from  the  office  of  publication  a  sworn  statement  that 
the  notice  was  published  for  the  statutory  period,  giving  the  first  and  last 
day  of  such  publication,   and  his  own  affidavit  showing  that  the  plat  and 
notice  aforesaid  remained  conspicuously  posted  upon  the  claim  sought  to  be 
patented  during  said  sixty  days'  publication,  giving  the  dates. 

52.  Upon  the  filing  of  this  affidavit  the  register  will,  if  no  adverse  claim 
was  filed  in  his  office  during  the  period  of  publication,   and  no  other  ob- 
jection appears,  permit  the  claimant  to  pay  for  the  land  to  which  he  is 
entitled  at  the  rate  of  five  dollars  for  each  acre  and  five  dollars  for  each 
fractional  part  of   an   acre,   except  as  otherwise  provided  by  law,  the  re- 
ceiver issuing  the  usual  duplicate  receipt  therefor.     The  claimant  will  also 
make  a  sworn  statement  of  all  charges  and  fees  paid  by  him  for  publication 
and  surveys,  together  with  all  fees  and  money  paid  the  register  and  receiver 
of  the  land   office,   after  which   the  complete  record  will   be  forwarded  to 
the  Commissioner  of  the  General  Land  Office  and  a  patent  issued  thereon 
if  found  regular. 


576  APPENDIX   B. 

53.  At  any  time  prior  to  the  issuance  of  patent  protest  may  be  filed  against 
the  patenting  of  the  claim  as  applied  for.  upon  any  ground  tending  to  show 
that  the  applicant  has  failed  to  comply  with  the  law  in  any  matter  essential 
to  a  valid  entry  under  the  patent  proceedings.     Such  protest  can  not,  how- 
ever, be  made  the  means  of  preserving  a  surface  conflict  lost  by  failure  to 
adverse  or  lost  by  the  judgment  of  the  court  in  an  adverse'  suit.     One  holding 
n   present  joint   interest   in   a   mineral  location   included   in   an   application 
for  patent  who  is  excluded  from  the  application,  so  that  his  interest  would 
not  be  protected  by  the  issue  of  patent  thereon,  may  protest  against  the 
issuance  of  a  patent  as  applied  for,  setting  forth  in  such  protest  the  nature 
and  extent  of  his  interest  in  such  location,  and  such  a  protestant  will  be 
deemed  a  party  in  interest  entitled  to  appeal.    This  results  from  the  holding 
that   a   co-owner   excluded   from   an   application   for   patent  does   not   have 
an   "adverse"  claim  within  the  meaning  of  sections  2325  and  2326  of   the 
Revised  Statutes.    (See  Turner  v.  Sawyer,  150  U.  S.  578-586  [14  Sup.  Ct.  192, 
37  L.   Ed.   1189].) 

54.  Any  party  applying  for  patent  as  trustee  must  disclose  fully  the  na- 
ture of  the  trust  and  the  name  of  the  cestui  que  trust;  and  such  trustee, 
as  well  as  the  beneficiaries,  must  furnish  satisfactory  proof  of  citizenship; 
and   the  names   of  beneficiaries,   as   well   as  that  of  the   trustee,   must  be 
inserted  in  the  final  certificate  of  entry. 

55.  The  annual  expenditure  of  one  hundred  dollars  in  labor  or  improve- 
ments on  a  mining  claim,  required  by  section  2324  of  the  Revised  Statutes, 
is  solely  a  matter  between  rival  or  adverse  claimants  to  the  same  mineral 
land,  and  goes  only  to  the  right  of  possession,  the  determination  of  which 
is  committed  exclusively  to  the  courts. 

56.  The  failure  of  an  applicant  for  patent  to  a  mining  claim  to  prosecute 
his   application   to   completion,    by   filing   the   necessary   proofs    and   making 
payment   for  the  land,    within   a    reasonable  time   after   the   expiration   of 
the  period  of  publication  of  notice  of  the  application,  or  after  the  termina- 
tion   of    adverse   proceedings    in    the   courts,    constitutes    a    waiver   by    the 
applicant  of  all  rights  obtained  by  the  earlier  proceedings  upon  the  application. 

57.  The   proceedings   necessary   to   the   completion   of    an    application   for 
patent  to  a  mining  claim,  against  which  an  adverse  claim  or  protest  has 
been  filed,  if  taken  by  the  applicant  at  the  first  opportunity  afforded  there- 
for under  the  law  and  departmental  practice,  will  be  as  effective  as  if  taken 
at  the  date  when,  but  for  the  adverse  claim  or  protest,  the  proceedings  on 
the  application  could  have  been  completed. 


PLACER  CLAIMS. 

58.  The   proceedings    to    obtain    patents   for   placer   claims,    including   all 
forms  of  mineral  deposits  excepting  veins  of  quartz  or  other  rock  in  place, 
are  similar  to  the  proceedings  prescribed  for  obtaining  patents  for  vein  or 
lode  claims;    but  where  a  placer  claim  shall  be  upon  surveyed  lands,  and 
conforms  to  legal  subdivisions,  no  further  survey  or  plat  will  be  required. 
Where  placer   claims   can   not   be   conformed   to   legal    subdivisions,    survey 
and  plat  shall  be  made  as  on  unsurveyed  lands. 

59.  The  proceedings  for  obtaining  patents  for  veins  or  lodes  having  already 
been  fully  given,  it  will  not  be  necessary  to  repeat  them  here,  it  being  thought 
that  careful  attention  thereto  by  applicants  and  the  local  officers  will  enable 
them  to  act  understandingly  in  the  matter,  and  make  such  slight  modifications 


LAND   OFFICE   REGULATIONS.  577 

In  the  notice,  or  otherwise,  as  may  be  necessary  in  view  of  the  different 
nature  of  the  two  classes  of  claims;  the  price  of  placer  claims  being  fixed, 
however,  at  two  dollars  and  fifty  cents  per  acre  or  fractional  part  of  an 
acre. 

60.  In  placer  applications  for  patent  care  must  be  exercised  to  determine 
the  proper  classification  of  the  lands  claimed.  To  this  end  the  clearest  evi- 
dence of  which  the  case  is  capable  should  be  presented. 

(1)  If  the  ^ claim  be  all  placer  ground,  that  fact  must  be   stated  in  the 
application  and  corroborated  by  accompanying  proofs;   if  of  mixed  placers 
and  lodes,  it  should  be  so  set  out,  with  a  description  of  all  known  lodes 
situated  within  the  boundaries  of  the  claim.     A  specific  declaration,  such  as 
is  required  by  section  2333,  Revised  Statutes,  must  be  furnished  as  to  each 
lode  intended  to  be  claimed.     All  other  known  lodes  are,  by  the  silence  of 
the  applicant,  excluded  by  law  from  all  claim  by  him,  of  whatsoever  nature, 
possessory  or  otherwise. 

(2)  Mineral  surveyors  shall,  at  the  expense  of  the  parties,  make  full  exami- 
nation of  all  placer  claims  surveyed  by  them  and  duly  note  the  facts  as 
specified   in   the   law,   stating  the  quality   and   composition   of  the  soil,   the 
kind  and  amount   of  timber   and   other  vegetation,   the   locus  and   size   of 
streams,  and  such  other  matters  as  may  appear  upon  the  surface  of  the  claim. 
This  examination  should  include  the  character  and  extent  of  all  surface  and 
underground  workings,  whether  placer  or  lode,  for  mining  purposes. 

(3)  In  addition  to  these  data,  which  the  law  requires  to  be  shown  in  all 
cases,  the  mineral  surveyor  should  report  with  reference  to  the  proximity 
of  centers  of  trade  or  residence;  also  of  well-known  systems  of  lode  deposit 
or  of  individual  lodes.    He  should  also  report  as  to  the  use  or  adaptability  of 
the  claim  for  placer  mining;  whether  water  has  been  brought  upon  it  in 
sufficient  quantity  to  mine  the  same,  or  whether  it  can  be  procured  for  that 
purpose ;  and,  finally,  what  works  or  expenditures  have  been  made  by  the 
claimant  or  his  grantors  for  the  development  of  the  claim,  and  their  situation 
and  location  with  respect  to  the  same  as  applied  for. 

(4)  This  examination  should  be  reported  by  the  mineral  surveyor  under 
oath   to  the  surveyor-general,   and   duly   corroborated;   and   a   copy   of  the 
same  should  be  furnished  with  the  application  for  patent  to  the  claim,  con- 
stituting a  part  thereof,  and  included  in  the  oath  of  the  applicant. 

(5)  Applications  awaiting  entry,  whether  published  or  not,  must  be  made 
to  conform  to  these  regulations,  with  respect  to  examination  as  to  the  char- 
acter of  the  land.    Entries  already  made  will  be  suspended  for  such  additional 
proofs  as  may  be  deemed  necessary  in  each  case. 


MILL  SITES. 

61.  Land  entered  as  a  mill  site  must  be  shown  to  be  nonmineral.     Mill 
sites  are  simply  auxiliary  to  the  working  of  mineral  claims,  and  as  section 
2337,  which  provides  for  the  patenting  of  mill  sites,  is  embraced  in  the  chap- 
ter of  the  Revised  Statutes  relating  to  mineral  lands,   they  are  therefore 
included  in  this  circular. 

62.  To  avail  themselves  of  this  provision  of  law  parties  holding  the  pos- 
sessory right  to  a  vein  or  lode  claim,  and  to  a  piece  of  nonmineral  land 
not  contiguous   thereto   for  mining  or   milling  purposes,   not   exceeding  the 
quantity   allowed   for   such   purpose   by   section   2337,   or  prior   laws,   under 
which  the  land  was  appropriated,  the  proprietors  of  such  vein  or  lode  may 

COST.MIN.L.— 37 


578  APPENDIX   B. 

file  in  the  proper  land  office  their  application  for  a  patent,  under  oath,  in 
manner  already  set  forth  herein,  which  application,  together  with  the  plat 
and  field  notes,  may  include,  embrace,  and  describe,  in  addition  to  the  vein 
or  lode  claim,  such  noncontiguous  mill  site,  and  after  due  proceedings  as 
to  notice,  etc.,  a  patent  will  be  issued  conveying  the  same  as  one  claim.  The 
owner  of  a  patented  lode  may,  by  an  independent  application,  secure  a  mill 
site  if  good  faith  is  manifest  in  its  use  or  occupation  in  connection  with  the 
lode  and  no  adverse  claim  exists. 

03.  Where  the  original  survey  includes  a  lode  claim  and  also  a  mill  site 
the  lode  claim  should  be  described  in  the  plat  and  field  notes  as  "Sur.  No. 
37,  A,"  and  the  mill  site  as  "Sur.  No.  37,  B,"  or  whatever  may  be  its  ap- 
propriate numerical  designation;  the  course  and  distance  from  a  corner 
of  the  mill  site  to  a  corner  of  the  lode  claim  to  be  invariably  given  in  such 
plat  and  field  notes,  and  a  copy  of  the  plat  and  notice  of  application  for 
patent  must  be  conspicuously  posted  upon  the  mill  site  as  well  as  upon  the 
vein  or  lode  claim  for  the  statutory  period  of  sixty  days.  In  making  the 
entry  no  separate  receipt  or  certificate  need  be  issued  for  the  mill  site,  but 
the  whole  area  of  both  lode  and  mill  site  will  be  embraced  in  one  entry,  the 
price  being  five  dollars  for  each  acre  and  fractional  part  of  an  acre  embraced 
by  such  lode  and  mill-site  claim. 

64.  In  case  the  owner  of  a  quartz  mill  or  reduction  works  is  not  the  owner 
or  claimant  of  a  vein  or  lode  claim  the  law  permits  him  to  make  applica- 
tion therefor  in  the  same  manner  prescribed  herein  for  mining  claims,  and 
after  due  notice  and  proceedings,  in  the  absence  of  a  valid  adverse  filing,  to 
enter  and  receive  a  patent  for  his  mill  site  at  said  price  per  acre. 

65.  In  every  case  there  must  be  satisfactory  proof  that  the  land  claimed 
as  a  mill  site  is  not  mineral  in  character,  which  proof  may,  where  the  mat- 
ter is  unquestioned,  consist  of  the  sworn  statement  of  two  or  more  persons 
capable,  from  acquaintance  with  the  land,  to  testify  understandingly. 

CITIZENSHIP. 

66.  The  proof  necessary  to  establish  the  citizenship  of  applicants  for  min- 
ing patents  must  be  made  in  the  following  manner:    In  case  of  an  incorporat- 
ed company,  a  certified  copy  of  their  charter  or  certificate  of  incorporation 
must  be  filed.     In  case  of  an  association  of  persons  unincorporated,  the  af- 
fidavit of  their  duly  authorized  agent,  made  upon  his  own  knowledge  or  upon 
information  and  belief,  setting  forth  the  residence  of  each  peson  forming  such 
association,  must  be  submitted.    This  affidavit  must  be  accompanied  by  a  power 
of  attorney  from  the  parties  forming  such  association,  authorizing  the  per- 
son who  makes  the  affidavit  of  citizenship  to  act  for  them  in  the  matter  of 
their  application  for  patent. 

67.  In  case  of  an  individual  or  an  association  of  individuals  who  do  not 
appear  by  their  duly  authorized  agent,  the  affidavit  of  each  applicant,  show- 
ing whether  he  is  a  native  or  naturalized  citizen,  when  and  where  born,  and 
his  residence,  will  be  required. 

68.  In  case  an  applicant  has  declared  his  intention  to  become  a  citizen  or 
has  been  naturalized,  his  affidavit  must  show  the  date,  place,  and  the  court 
before  which  he  declared  his  intension,  or  from  which  his  certificate  of  citi- 
zenship issued,  and  present  residence. 

69.  The  affidavit  of  the  claimant  as  to  his  citizenship  may  be  taken  before 
the  register  or  receiver,  or  any  other  officer  authorized  to  administer  oaths 


LAND   OFFICE    REGULATIONS.  570 

within  the  land  districts;  or,  if  the  claimant  is  residing  beyond  the  limits  of 
the  district,  the  affidavit  may  be  taken  before  the  clerk  of  any  court  of  record 
or  before  any  notary  public  of  any  state  or  territory. 

70.  If  citizenship  is  established  by  the  testimony  of  disinterested  persons, 
such  testimony  may  be  taken  at  any  place  before  any  person  authorized  to 
administer  oaths,  and  whose  official  character  is  duly  verified. 

71.  No  entry  will  be  allowed  until  the  register  has  satisfied  himself,  by 
careful  examination,  that  proper  proofs  have  been  filed  upon  the  points  in- 
dicated in  the  law  and  official  regulations.     Transfers  made  subsequent  to 
the  filing  of  the  application  for  patent  will  not  be  considered,  but  entry  will 
be  allowed  and  patent  issued  in  all  cases  in  the  name  of  the  applicant  for 
patent,  the  title  conveyed  by  the  patent,  of  course,  in  each  instance  inuring 
to  the  transferee  of  such  applicant  where  a  transfer  has  been  made  pending 
the  application  for  patent. 

72.  The  consecutive  series  of  numbers  of  mineral  entries  must  be  continued, 
whether  the  same  are  of  lode  or  placer  claims  or  mill  sites. 

73.  In  sending  up  the  papers  in  a  case  the  register  must  not  omit  certifying 
to  the  fact  that  the  notice  was  posted  in  his  office  for  the  full  period  of  sixty 
days,  such  certificate  to  state  distinctly  when  such  posting  was  done  and  how 
long  continued.    The  plat  forwarded  as  part  of  the  proof  should  not  be  fold- 
ed, but  rolled,  so  as  to  prevent  creasing,  and  either  transmitted  in  a  separate 
package  or  so  enclosed  with  the  other  papers  that  it  may  pass  through  the 
mails  without  creasing  or  mutilation.     If  forwarded  separately,  the  letter 
transmitting  the  papers  should  state  the  fact. 

POSSESSORY  RIGHT. 

74.  The  provisions  of  section  2332,  Revised  Statutes,  will  greatly  lessen  the 
burden  of  proof,  more  especially  in  the  case  of  old  claims  located  many  years 
since,  the  records  of  which,  in  many  cases,  have  been  destroyed  by  fire,  or 
lost  in  other  ways  during  the  lapse  of  time,  but  concerning  the  possessory 
right  to  which  all  controversy  or  litigation  has  long  been  settled. 

'75.  When  an  applicant  desires  to  make  his  proof  of  possessory  right  in 
accordance  with  this  provision  of  law,  he  will  not  be  required  to  produce  evi- 
dence of  location,  copies  of  conveyances,  or  abstracts  of  title,  as  in  other 
cases,  but  will  be  required  to  furnish  a  duly  certified  copy  of  the  statute  of 
limitation  of  mining  claims  for  the  state  or  territory,  together  with  his  sworn 
statement  giving  a  clear  and  succinct  narration  of  the  facts  as  to  the  origin 
of  his  title,  and  likewise  as  to  the  continuation  of  his  possession  of  the  min- 
ing ground  covered  by  his  application ;  the  area  thereof ;  the  nature  and 
extent  of  the  mining  that  has  been  done  thereon;  whether  there  has  been 
any  opposition  to  his  possession,  or  litigation  with  regard  to  his  claim,  and 
if  so,  when  the  same  ceased ;  whether  such  cessation  was  caused  by  compro- 
mise or  by  judicial  decree,  and  any  additional  facts  within  the  claimant's 
knowledge  having  a  direct  bearing  upon  his  possession  and  bona  fides  which 
he  may  desire  to  submit  in  support  of  his  claim. 

76.  There  should  likewise  be  filed  a  certificate,  under  seal  of  the  court  hav- 
ing jurisdiction  of  mining  cases  within  the  judicial  district  embracing  the 
claim,  that  no  suit  or  action  of  any  character  whatever  involving  the  right 
of  possession  to  any  portion  of  the  claim  applied  for  is  pending,  and  that  there 
lias  been  no  litigation  before  said  court  affecting  the  title  to  said  claim  or  any 
iMirt  thereof  for  a  period  equal  to  the  time  fixed  by  the  statute  of  limitations 


580  APPENDIX   B. 

for   mining  claims  in  the  state  or  territory   as   aforesaid  other  than  that 
which  has  been  finally  decided  in  favor  of  the  claimant. 

77.  The  claimant  should  support  his  narrative  of  facts  relative  to  his  pos- 
session, occupancy,  and  improvements  by  corroborative  testimony  of  any  dis- 
interested person  or  persons  of  credibility  who  may  be  cognizant  of  the  facts 
in  the  case  and  are  capable  of  testifying  understandingly  in  the  premises. 

ADVERSE  CLAIMS. 

78.  An  adverse  claim  must  be  filed  with  the  register  and  receiver  of  the  land 
office  where  the  application  for  patent  is  filed  or  with  the  register  and  receiv- 
er of  the  district  in  which  the  land  is  situated  at  the  time  of  filing  the  adverse 
claim.    It  must  be  on  the  oath  of  the  adverse  claimant,  or  it  may  be  verified 
by  the  oath  of  any  duly  authorized  agent  or  attorney  in  fact  of  the  ad- 
verse claimant  cognizant  of  the  facts  stated. 

79.  Where  an  agent  or  attorney  -in  fact  verifies  the  adverse  claim,  he  must 
distinctly  swear  that  he  is  such  agent  or  attorney,  and  accompany  his  af- 
fidavit by  proof  thereof. 

80.  The  agent,  or  attorney  in  fact  must  make  the  affidavit  in  verification  of 
the  adverse  claim  within  the  land  district  where  the  claim  is  situated. 

81.  The  adverse  claim  so  filed  must  fully  set  forth  the  nature  and  extent  of 
the  interference  or  conflict ;   whether  the  adverse  party  claims  as  a  purchaser 
for  valuable  consideration  or  as  a  locator.    If  the  former,  a  certified  copy  of 
the  original  location,  the  original  conveyance,  a  duly  certified  copy  thereof, 
or  an  abstract  of  title  from  the  office  of  the  proper  recorder  should  be  furnish- 
ed, or  if  the  transaction  was  a  merely  verbal  one  he  will  narrate  the  cir- 
cumstances attending  the  purchase,  the  date  thereof,  and  the  amount  paid, 
which  facts  should  be  supported  by  the  affidavit  of  one  or  more  witnesses, 
if  any  were  present  at  the  time,  and  if  he  claims  as  a  locator  he  must  file 
a  duly  certified  copy  of  the  location  from  the  office  of  the  proper  recorder. 

82.  In   order  that   the   "boundaries"   and   "extent"   of  the  claim   may   be 
shown,  it  will  be  incumbent  upon  the  adverse  claimant  to  file  a  plat  showing 
his  entire  claim*  its  relative  situation  or  position  with  the  one  against  which 
he  claims,  and  the  extent  of  the  conflict:   Provided,  however,  That  if  the  ap- 
plication for  patent  describes  the  claim  by  legal  subdivisions,   the  adverse 
claimant,   if  also  claiming  by  legal  subdivisions,  may  describe  his  adverse 
claim  in  the  same  manner  without  further  survey  or  plat.    If  the  claim  is  not 
described  by  legal  subdivisions,  it  will  generally  be  more  satisfactory  if  the 
plat  thereof  is  made  from  an  actual  survey  by  a  mineral  surveyor,  and  its 
correctness  officially  certified  thereon  by  him. 

83.  Upon  the  foregoing  being  filed  within  the  sixty  days'  period  of  publica- 
tion, the  register,  or  in  his  absence  the  receiver,  will  immediately  give  no- 
tice in  writing  to  the  parties  that  such  adverse  claim  has  been  filed,  informing 
them  that  the  party  who  filed  the  adverse  claim  will  be  required  within  thirty 
days  from  the  date  of  such  filing  to  commence  proceedings  in  a  court  of 
competent  jurisdiction  to  determine  the  question  of  right  of  possession,  and 
to  prosecute  the  same  with  reasonable  diligence  to  final  judgment,  and  that, 
should  such  adverse  claimant  fail  to  do  so,  his  adverse  claim  will  be  con- 
sidered waived  and  the  application  for  patent  be  allowed  to  proceed  upon  its 
merits. 

84.  When  an  adverse  claim  is  filed  as  aforesaid,  the  register  or  receiver 
will  indorse  upon  the  same  the  precise  date  of  filing,  and  preserve  a  record 


LAND   OFFICE   KEGULATIONS.  581 

of  the  date  of  notifications  issued  thereon ;  and  thereafter  all  proceedings  on 
the  application  for  patent  will  be  stayed,  with  the  exception  of  the  com- 
pletion of  the  publication  and  posting  of  notices  and  plat  and  the  filing  of  the 
necessary  proof  thereof,  until  the  controversy  shall  have  been  finally  adjudicat- 
ed in  court  or  the  adverse  claim  waived  or  withdrawn. 

85.  Where  an  adverse  claim  has  been  filed  and  suit  thereon  commenced 
within  the  statutory  period  and  final  judgment  rendered  determining  the  right 
of  possession,  it  will  not  be  sufficient  to  file  with  the  register  a  certificate  of 
the  clerk  of  the  court  setting  forth  the  facts  as  to  such  judgment,  but  the 
successful  party  must,  before  he  is  allowed  to  make  entry,  file  a  certified 
copy  of  the  judgment  roll,  together  with  the  other  evidence  required  by  sec- 
tion 2326,  Revised  Statutes. 

86.  Where  such  suit  has  been  dismissed,  a  certificate  of  the  clerk  of  the 
court  to  that  effect  or  a  certified  copy  of  the  order  of  dismissal  will  be  suf- 
ficient. 

87.  After  an  adverse  claim  has  been  filed  and  suit  commenced,  a  relinquish- 
ment  or  other  evidence  of  abandonment  of  the  adverse  claim  will  not  be  ac- 
cepted, but  the  case  must  be  terminated  and  proof  thereof  furnished  as  re- 
quired by  the  last  two  paragraphs. 

88.  Where  an  adverse  claim  has  been  filed,  but  no  suit  commenced  against 
the  applicant  for  patent  within  the  statutory  period,  a  certificate  to  that  effect 
by  the  clerk  of  the  state  court  having  jurisdiction  in  the  case,  and  also  by 
the  clerk  of  the  circuit  court  of  the  United  States  for  the  district  in  which 
the  claim  is  situated,  will  be  required. 


APPOINTMENT  OF  SURVEYORS  FOR  SURVEY  OF  MINING  CLAIMS- 
CHARGES  FOR  SURVEYS  AND  PUBLICATIONS— FEES  OF  REGIS- 
TERS AND  RECEIVERS,  ETC. 

89.  Section  2334  provides  for  the  appointment  of  surveyors  to  survey  min- 
ing claims,  and  authorizes  the  Commissioner  of  the  General  Land  Office  to 
establish  the  rates  to  be  charged  for  surveys  and  for  newspaper  publica- 
tions. Under  this  authority  of  law  the  following  rates  have  been  established 
as  the  maximum  charges  for  newspaper  publications  in  mining  cases: 

(1)  Where  a  daily  newspaper  is  designated  the  charge  shall  not  exceed 
seven  dollars  for  each  ten  lines  of  space  occupied,  and  where  a  weekly  news- 
paper is  designated  as  the  medium  of  publication  five  dollars  for  the  same 
space  will  be  allowed.  Such  charge  shall  be  accepted  as  full  payment  for 
publication  in  each  issue  of  the  newspaper  for  the  entire  period  required  by 
law. 

It  is  expected  that  these  notices  shall  not  be  so  -abbreviated  as  to  cur- 
tail the  description  essential  to  a  perfect  notice,  and  the  said  rates  estab- 
lished upon  the  understanding  that  they  are  to  be  in  the  usual  body  type 
used  for  advertisements. 

(2).  For  the  publication  of  citations  in  contests  or  hearings  involving  the 
character  of  lands  the  charges  shall  not  exceed  eight  dollars  for  five  publi- 
cations in  weekly  newspapers  or  ten  dollars  for  publications  in  daily  newspa- 
pers for  thirty  days. 

80.  The  surveyors-general  of  the  several  districts  will,  in  pursuance  of 
said  law,  appoint  in  each  land  district  as  many  competent  surveyors  for  the 
survey  of  mining  claims  as  may  seek  such  appointment,  it  being  distinctly 


582  APPENDIX   B. 

understood  that  all  expenses  of  these  notices  and  surveys  are  to  be  borne 
by  the  mining  claimants  and  not  by  the  United  States.  The  statute  provides 
that  the  claimant  shall  also  be  at  liberty  to  employ  any  United  States  mineral 
surveyor  to  make  the  survey.  Each  surveyor  appointed  to  survey  mining 
claims  before  entering  upon  the  duties  of  his  office  or  appointment  shall 
be  required  to  enter  into  a  bond  of  not  less  than  $1,000  for  the  faithful  per- 
formance of  his  duties. 

91.  With  regard  to  the  platting  of  the  claim  and  other  office  work  in  the 
surveyor-general's  office,  that  officer  will  make  an  estimate  of  the  cost  there- 
of, which  amount  the  claimant  will  deposit  with  any  assistant  United  States 
treasurer  or  designated  depository  in  favor  of  the  United  States  Treasurer, 
to  be  passed  to  the  credit  of  the  fund  created  by  "individual  depositors  for 
surveys  of  the  public  lands,"  and  file  with  the  surveyor-general  duplicate  cer- 
tificates of  such  deposit  in  the  usual  manner. 

92.  The   surveyors-general   will   endeavor  to  appoint   surveyors  to   survey 
mining  claims  so  that  one  or  more  may  be  located  in  each  mining  district 
for  the  greater  convenience  of  miners. 

93.  The  usual  oaths  will  be  required  of  these  surveyors  and  their  assistants 
as  to  the  correctness  of  each  survey  executed  by  them. 

The  duty  of  the  surveyor  ceases  when  he  has  executed  the  survey  and 
returned  the  field  notes  and  preliminary  plat  thereof  with  his  report  to  the 
surveyor-general.  He  will  not  be  allowed  to  prepare  for  the  mining  claimant 
the  papers  in  support  of  an  application  for  patent,  or  otherwise  perform 
the  duties  of  an  attorney  before  the  land  office  in  connection  with  a  mining 
claim. 

The  surveyors-general  and  local  land  officers  are  expected  to  report  any 
infringement  of  this  regulation  to  this  office. 

94.  Should  it  appear  that  excessive  or  exorbitant  charges  have  been  made 
by  any  surveyor  or  any  publisher,  prompt  action  will  be  taken  with  the  view 
of  correcting  the  abuse. 

95.  The  fees  payable  to  the  register  and  receiver  for  filing  and  acting  upon 
applications  for  mineral-land  patents  are  five  dollars  to  each  officer,  to  be  paid 
by  the  applicant  for  patent  at  the  time  of  filing,  and  the  like  sum  of  five  dol- 
lars is  payable  to  each  officer  by  an  adverse  claimant  at  the  time  of  filing  his 
adverse  claim.     (Sec.  2238,  R.  S.,  par.  9.) 

96.  At  the  time  of  payment  of  fee  for  mining  application  or  adverse  claim 
the  receiver  will  issue  his  receipt  therefor  in  duplicate,  one  to  be  given  the 
applicant  or  adverse  claimant,  as  the  case  may  be,  and  one  to  be  forwarded 
to  the  Commissioner  of  the  General  Land  Office  on  the  day  of  issue.     The 
receipt  for  mining   application  should  have  attached  the  certificate  of  the 
register  that  the  lands  included  in  the  application  are  subject  to  such  appro- 
priation, as  far  as  shown  by  the  records  of  his  office. 

97.  The  register  and  receiver  wrill,  at  the  close  of  each  month,  forward  to 
this  office  an  abstract  of  mining  applications  filed,  an  abstract  of  adverse 
claims  filed,  an  abstract  of  mineral  lands  sold,  and  a  report  of  receipts  from 
such  sales. 

98.  The  fees  and  purchase  money  received  by  registers  and  receivers  must 
be  placed  to  the  credit  of  the  United  States  in  the  receiver's  monthly  and 
quarterly  account,  charging  up  in  the  disbursing  account  the  sums  to  which 
the  register  and  receiver  may  be  respectively  entitled  as  fees  and  commis- 
sions, with  limitations  in  regard  to  the  legal  maximum. 


LAND   OFFICE   REGULATIONS.  583 


HEARINGS  TO  DETERMINE  CHARACTER  OF  LANDS. 

99.  The  Rules  of  Practice  in  cases  before  the  United  States  district  land 
offices,  the  General  Land  Office,  and  the  Department  of  the  Interior  will,  so 
far  as  applicable,  govern  in  all  cases  and  proceedings  arising  in  contests  and 
hearings  to  determine  the  character  of  lands. 

100.  Public  land  returned  by  the  surveyor-general  as  mineral  shall  be  with- 
held from  entry  as  agricultural  land  until  the  presumption  arising  from  snob 
a  return  shall  be  overcome  by  testimony  taken  in  the  manner  hereinafter  de- 
scribed. 

101.  Hearings  to  determine  the  character  of  lands  are  practically  of  two 
kinds,  as  follows: 

(1)  Lands  returned  as  mineral  by  the  surveyor-general. 

When  such  lands  are  sought  to  be  entered  as  agricultural  under  laws  which 
require  the  submission  of  final  proof  after  due  notice  by  publication  and  post- 
ing, the  filing  of  the  proper  nomnineral  affidavit  in  the  absence  of  allega- 
tions that  the  land  is  mineral  will  be  deemed  sufficient  as  a  preliminary  re- 
quirement. A  satisfactory  showing  as  to  character  of  land  must  be  made 
when  final  proof  is  submitted. 

In  case  of  application  to  enter,  locate,  or  select  such  lands  as  agricultural, 
under  laws  in  which  the  submission  of  final  proof  after  due  publication  and 
posting  is  not  required,  notice  thereof  must  first  be  given  by  publication  for 
sixty  days  and  posting  in  the  local  office  during  the  same  period,  and  af- 
firmative proof  as  to  the  character  of 'the  land  submitted.  In  the  absence  of 
allegations  that  the  land  is  mineral,  and  upon  compliance  with  this  require- 
ment, the  entry,  location,  or  selection  will  be  allowed,  if  otherwise  regular. 

(2)  Lands  returned  as  agricultural  and  alleged  to  be  mineral  in  character. 
Where  as  against  the  claimed  right  to  enter  such  lands  as  agricultural  it 

is  alleged  that  the  same  are  mineral,  or  are  applied  for  as  mineral  lands,  the 
proceedings  in  this  class  of  cases  will  be  in  the  nature  of  a  contest,  and  the 
practice  will  be  governed  by  the  rules  in  force  in  contest  cases. 

[Paragraphs  102  to  104,  inclusive,  are  omitted  from  this  revision  of  the 
regulations,  as  appropriate  instructions  relative  to  nonmineral  proofs  in  rail- 
road, state,  and  forest  lieu  selections  are  contained  in  separate  circulars.] 

105.  At  hearings  to  determine  the  character  of  lands  the  claimants  and 
witnesses  will  be  thoroughly  examined  with  regard  to  the  character  of  the 
land ;  whether  the  same  has  been  thoroughly  prospected ;  whether  or  not  there 
exists  within  the  tract  or  tracts  claimed  any  lode  or  vein  of  quartz  or  other 
rock  in  place  bearing  gold,  silver,  cinnabar,  lead,  tin,  or  copper,  or  other  valu- 
able  deposit   which  has   ever   been  claimed,   located,   recorded,   or   wrorked ; 
whether  such  work   is  entirely   abandoned,   or  whether  occasionally   resum- 
ed;   if  such  lode  does  exist,  by  whom  claimed,  under  what  designation,  and 
in  which  subdivision  of  the  land  it  lies ;    whether  any  placer  mine  or  mines 
exist  upon  the  land;    if  so,  what  is  the  character  thereof — Whether  of  the 
shallow-surface  description,  or  of  the  deep  cement,  blue  lead,  or  gravel  de- 
posits ;   to  what  extent  mining  is  carried  on  when  water  can  be  obtained,  and 
what  the  facilities  are  for  obtaining  water  for  mining  purposes;    upon  what 
particular  ten-acre  subdivisions  mining  has  been  done,  and  at  what  time  the 
land  was  abandoned  for  mining  purposes,  if  abandoned  at  all. 

106.  The  testimony  should  also  showr  the  agricultural  capacities  of  the  land, 
what  kind  of  crops  are  raised  thereon,  and  the  value  thereof;    the  number 
of  acres  actually  cultivated  for  crops  of  cereals  or  vegetables,  and  within 


584  APPENDIX   B. 

which  particular  ten-acre  subdivision  such  crops  are  raised;  also  which  of 
these  subdivisions  embrace  the  improvements,  giving  in  detail  the  extent  and 
value  of  the  improvements,  such  as  house,  barn,  vineyard,  orchard,  fencing, 
etc.,  and  mining  improvements. 

107.  The  testimony  should  be  as  full   and  complete  as  possible;    and  in 
addition  to  the  leading  points  indicated  above,  where  an  attempt  is  made 
to  prove  the   mineral  character   of  lands  which   have  been   entered   under 
the  agricultural  laws,  it  should  show  at  what  date,  if  at  all  valuable  deposits 
of  minerals  were  first  known  to  exist  on  the  lands. 

108.  When  the  case  comes  before  this  office,  such  decision  will  be  made  as 
the  law  and  the  facts  may  justify.     In  cases  where  a  survey  is  necessary 
to  set  apart  the  mineral  from  the  agricultural  land,  the  proper  party,  at  his 
own  expense,  will  be  required  to  have  the  work  done  by  a  reliable  and  com- 
petent surveyor  to  be  designated  by  the  surveyor-general.     Application  there- 
for must  be  made  to  the  register  and  receiver,  accompanied  by  description  of 
the  land  to  be  segregated  and  the  evidence  of  service  upon  the  opposite  par- 
ty of  notice  of  his  intention  to  have  such  segregation  made.    The  register  and 
receiver  will  forward  the  same  to  this  office,  when  the  necessary  instructions 
for  the  survey  will  be  given.    The  survey  in  such  case,  where  the  claims  to 
be  segregated  are  vein  or  .lode  claims,  must  be  executed  in  such  manner  as 
will  conform  to  the  requirements  in  section  2320,  United  States  Revised  Stat- 
utes, as  to  length  and  width  and  parallel  end  lines. 

109.  Such  survey  when  executed  must  be  properly  sworn  to  by  the  sur- 
veyor, either  before  a  notary  public,  officer  of  a  court  of  record,  or  before 
the  register  or  receiver,  the  deponent's  character  and  credibility  to  be  prop- 
erly certified  to  by  the  officer  administering  the  oath. 

110.  Upon  the  filing  of  the  plat  and  field  notes  of  such  survey  with  the  reg- 
ister and  receiver,  duly  sworn  to  as  aforesaid,  they  will  transmit  the  same 
to  the  surveyor-general  for  his  verification  and  approval,  who,  if  he  finds  the 
work  correctly  performed,  will  furnish  authenticated  copies  of  such  plat  and 
description  both  to  the  proper  local  land  office  and  to  this  office,  made  upon 
the  usual  drawing-paper  township  blank. 

The  copy  of  plat  furnished  the  local  office  and  this  office  must  be  a  diagram 
verified  by  the  surveyor-general,  showing  the  claim  or  claims  segregated,  and 
designating  the  separate  fractional  agricultural  tracts  in  each  40-acre  legal 
subdivision  by  the  proper  lot  number,  beginning  with  No.  1,  in  each  section, 
and  giving  the  area  in  each  lot,  the  same  as  provided  in  paragraph  37  in  the 
survey  of  mining  claims  on  surveyed  lands. 

111.  The  fact  that  a  certain  tract  of  land  is  decided  upon  testimony  to 
be  mineral  in  character  is  by  no  means  equivalent  to  an  award  of  the  land 
to  a  miner.    In  order  to  secure  a  patent  for  such  land,  he  must  proceed  as  in 
other  cases,  in  accordance  with  the  foregoing  regulations. 

Blank  forms  for  proofs  in  mineral  cases  are  not  furnished  by  the  General 
Land  Office. 

DISTRICT  OF  ALASKA. 

112.  Section  13,  Act  of  May  14,  1898,  according  to  native-born  citizens  of 
Canada  "the  same  mining  rights  and  privileges"  in  the  district  of  Alaska  as 
are  accorded  to  citizens  of  the  United  States  in  British  Columbia  and  the 
Northwest  Territory  by  the  laws  of  the  Dominion  of  Canada,  is  not  now 
and  never  has  been  operative,  for  the  reason  that  the  only  mining  rights 
and  privileges  granted  to  any  person  by  the  laws  of  the  Dominion  of  Canada 


LAND   OFFICE   REGULATIONS.  585 

are  those  of  leasing  mineral  lands  upon  the  payment  of  a  stated  royalty,  and 
the  mining  laws  of  the  United  States  make  no  provision  for  such  leases. 

113.  For  the  sections  of  the  act  of  June  6,  1900,  making  further  provision 
for  a  civil  government  for  Alaska,  which  provide  for  the  establishment  of 
recording  districts  and  the  recording  of  mining  locations;  for  the  making 
of  rules  and  regulations  by  the  miners  and  for  the  legalization  of  mining 
records;  for  the  extension  of  the  mining  laws  to  the  district  of  Alaska,  and 
for  the  exploration  and  mining  of  tide  lands  and  lands  below  low  tide ;  and 
relating  to  the  rights  of  Indians  and  persons  conducting  schools  or  missions, 
see  page  21  of  this  circular. 


MINERAL  LANDS  WITHIN  FOREST  RESERVES. 

114.  The  act  of  June  4,  1897,  provides  that  "any  mineral   lands  in   any 
forest  reservation  which  have  been  or  which  may  be  shown  to  be  such,  and 
subject  to  entry  under  the  existing  mining  laws  of  the  United  States  and  the 
rules  and  regulations  applying  thereto,  shall  continue  to  be  subject  to  such 
location  and  entry,"  notwithstanding  the  reservation.     This  makes  mineral 
lands  in  the  forest  reserves  subject  to  location  and  entry  under  the  general 
mining  laws  in  the  usual  manner. 

The  act  also  provides  that  "the  Secretary  of  the  Interior  may  permit,  un- 
der regulations  to  be  prescribed  by  him,  the  use  of  timber  and  stone  found 
upon  such  reservations,  free  of  charge,  by  bona  fide  settlers,  miners,  resi- 
dents, and  prospectors  for  minerals,  for  firewood,  fencing,  buildings,  min- 
ing, prospecting,  and  other  domestic  purposes,  as  may  be  needed  by  such  per- 
sons for  such  purposes;  such  timber  to  be  us'ed  within  the  state  or  territory, 
respectively,  where  such  reservations  may  be  located." 

For  further  instructions  under  this  act  see  circular  of  April  4,  1900  (30 
L.  D.,  23,  28-30). 

SURVEYS  OF  MINING  CLAIMS. 
GENERAL  PROVISIONS. 

115.  Under  section  2334,  U.  S.  Rev.  Stats.,  the  U.  S.  surveyor-general  "may 
appoint  in  each  land  district  containing  mineral  lands  as  many  competent 
surveyors  as  shall  apply  for  appointment  to  survey  mining  claims." 

116.  Persons  desiring  such  appointment  should  therefore  file  their  applica- 
tions with  the  surveyor-general  for  the  district  wherein  appointment  is  ask- 
ed, who  will  furnish  all  information  necessary. 

117.  All  appointments  of  mineral  surveyors  must  be  submitted  to  the  Com- 
missioner of  the  General  Land  Office  for  approval. 

118.  The  surveyors-general  have  authority  to  suspend  or  revoke  the  com- 
missions of  mineral  surveyors  for  cause.     Before  final  action,  however,  the 
matter  should  be  submitted  to  the  Commissioner  of  the  General  Land  Of- 
fice for  approval. 

119.  Such  surveyors  will  be  allowed  the  right  of  appeal  from  the  action  of 
the  surveyor-general  in  the  usual  manner.     Such  appeal  should  be  filed  with 
the  surveyor-general,  who  will  at  once  transmit  the  same,  with  a  full  report, 
to  the  General  Land  Office. 

120.  Neither   the  surveyor-general   nor  the   Commissioner   of  the   General 
Land  Office  has  jurisdiction  to  settle  differences,  relative  to  the  payment  of 
charges  for  field  work,  between  mineral  surveyors  and  claimants.     These  are 


586  APPENDIX   B. 

matters  of  private  contract  and  must  be  enforced  in  the  ordinary  manner,  i.  e., 
in  the  local  courts.  The  Department  has,  however,  authority  to  investigate 
charges  affecting  the  official  actions  of  mineral  surveyors,  and  will,  on  suf- 
ficient cause  shown,  suspend  or  revoke  their  appointment. 

121.  The  surveyors-general  should  appoint  as  many  competent  mineral  sur- 
veyors as  apply  for  appointment,  in  order  that  claimants  may  have  a  choice 
of  surveyors,  and  be  enabled  to  have  their  work  done  on  the  most  advan- 
tageous terms. 

122.  The  schedule  of  charges  for  office  work  should  be  as  low  as  is  possible. 
No  additional  charges  should  be  made  for  orders  for  amended  surveys,  unless 
the  necessity  therefor  is  clearly  the  fault  of  the  claimant,   or  considerable 
additional  office  work  results  therefrom. 

123.  In  cases  where  the  error  in  the  original  survey  is  due  to  the  careless- 
ness or  neglect  of  the  surveyor  who  made  it,  he  should  be  required  to  make 
the  necessary  corrections  in  the  field  at  his  own  expense,  and  the  surveyor- 
general  should  advise  him  that  the  penalty  for  failure  to  comply  with  in- 
structions within  a  specified  time  will  be  the  suspension  or  revocation  of 
his  appointment. 

124.  Mineral  surveyors  will  address  all  official  communications  to  the  sur- 
veyor-general.    They  will,  when  a  mining  claim  is  the  subject  of  correspond- 
ence, give  the  name  and  survey  number.    In  replying  to  letters  they  will  give 
the  subject-matter  and  date  of  the  letter.    They  will  promptly  notify  the  sur- 
veyor-general of  any  change  in  post-office  address. 

125.  Mineral  surveyors  should  keep  a  complete  record  of  each  survey  made 
by  them  and  the  facts  coming  to  their  knowledge  at  the  time,  as  well  as 
copies  of  all  their  field  notes,  reports,  and  official  correspondence,  in  order 
that  such  evidence  may  be  readily  produced  when  called  for  at  any  future 
time.     Field  notes  and  other  reports  must  be  written  in  a  clear  and  legible 
hand  or  typewritten,  in  noncopying  ink,  and  upon  the  proper  blanks  furnished 
gratuitously  by  the  surveyor-general's  office  upon  application  therefor.     No 
interlineations  or  erasures  will  be  allowed. 

126.  No  return  by  a  mineral  surveyor  will  be  recognized  as  official  unless 
it  is  over  his  signature  as  a  United  States  mineral  surveyor,  and  made  in 
pursuance  of  a  special  order  from  the  surveyor-general's  office.     After  he  has 
received  an  order  for  survey  he  is  required  to  make  the  survey  and  return  cor- 
rect field  notes  thereof  to  the  surveyor-general's  office  without  delay. 

127.  The  claimant  is  required,  in  all  cases,  to  make  satisfactory  arrangements 
with  the  surveyor  for  the  payment  for  his  services  and  those  of  his  assistants 
in  making  the  survey,  as  the  United  States  will  not  be  held  responsible  for 
the  same. 

128.  A  mineral  surveyor  is  precluded  from  acting,  either  directly  or  indirect- 
ly, as  attorney  in  mineral  claims.     His  duty  in  any  particular  case  ceases 
when  he  has  executed  the  survey  and  returned  the  field  notes  and  preliminary 
plat,  with  his  report,  to  the  surveyor-general.     He  will  not  be  allowed  to  pre- 
pare for  the  mining  claimant  the  papers  in  support  of  his  application  for 
patent,  or  otherwise  perform  the  duties  of  an  attorney  before  the  land  office 
in  connection  with  a  mining  claim.    He  is  not  permitted  to  combine  the  duties 
of  surveyor  and  notary  public  in  the  same  case  by  administering  oaths  to 
the  parties  in  interest.    It  is  preferable  that  both  preliminary  and  final  oaths 
of  assistants  should  be  taken  before  some  officer  duly  authorized  to  administer 
oaths,  other  than  the  mineral  surveyor.     In  cases,  however,  where  great  de- 
lay, ejpense,  or  inconvenience  would  result  from  a  strict  compliance  with 


LAND   OFFICE   REGULATIONS.  587 

this  rule,  the  mineral  surveyor  is  authorized  to  administer  the  necessary 
oaths  to  his  assistants,  but  in  each  case  where  this  is  done,  he  will  submit 
to  the  proper  surveyor-general  a  full  written  report  of  the  circumstances 
which  required  his  stated  action ;  otherwise  he  must  have  absolutely  nothing 
to  do  with  the  case,  except  in  his  official  capacity  as  surveyor.  He  will  make 
no  survey  of  a  mineral  claim  in  which  he  holds  an  interest,  nor  will  he  em- 
ploy chainmen  interested  therein  in  any  manner. 

SURVEY — How  MADE. 

129.  The  survey  made  and  returned  must,  in  every  case,  be  an  actual  sur- 
vey on  the  ground  in  full  detail,  made  by  the  mineral  surveyor  in  person  after 
the  receipt  of  the  order,  and  without  reference  to  any  knowledge  he  may 
have  previously  acquired  by  reason  of  having  made  the  location  survey  or 
otherwise,  and  must  show  the  actual  facts  existing  at  the  time.     This  pre- 
cludes him  from  calculating  the  connections  to  corners  of  the  public  survey 
and  location  monuments,  or  any  other  lines  of  his  survey  through  prior  sur- 
veys made  by  others  and  substituting  the  same  for  connections  or  lines  of 
the  survey  returned  by  him.    The  term  survey  in  this  paragraph  applies  not 
only  to  the  usual  field  work,  but  also  to  the  examinations  required  for  the 
preparation  of  affidavits  of  five  hundred  dollars  expenditure,  descriptive  re- 
ports on  placer  claims,  and  all  other  reports. 

130.  The  survey  of  a  mining  claim  may  consist  of  several  contiguous  loca- 
tions, but  such  survey  must,  in  conformity  with  statutory  requirements,  dis- 
tinguish the  several  locations,  and  exhibit  the  boundaries  of  each.     The  sur- 
vey will  be  given  but  one  number. 

131.  The  survey  must  be  made  in  strict  conformity  with,  or  be  embraced 
within,  the  lines  of  the  location  upon  which  the  order  is  based.     If  the  sur- 
vey and  location  are  identical,  that  fact  must  be  clearly  and  distinctly  stat- 
ed in  the  field  notes.    If  not  identical,  a  bearing  and  distance  must  be  given 
from  each  established  corner  of  survey  to  the  corresponding  corner  of  the 
location,  and  the  location  corner  must  be  fully  described,  so  that  it  can  be 
identified.     The  lines  of  the  location,   as  found  upon  the  ground,   must  be 
laid  down  upon  the  preliminary  plat  in  such  a  manner  as  to  contrast  and 
show  their  relation  to  the  lines  of  survey. 

132.  In  view  of  the  principle  that  courses  and  distances  must  give  way 
when  in  conflict  with  fixed  objects  and  monuments,  the  surveyor  will  not,  un- 
der any  circumstances,  change  the  corners  of  the  location  for  the  purpose  of 
making  them  conform  to  the  description  in  the  record.    If  the  difference  from 
the  location  be  slight,  it  may  be  explained  in  the  field  notes. 

133.  No  mining  claim  located  subsequent  to  May  10,  1872,  should  exceed  the 
statutory  limit  in  width  on  each  side  of  the  center  of  vein  or  1,500  feet  in 
length,  and  all  surveys  must  close  within  50-100  feet  in  1,000  feet,  and  the  er- 
ror must  not  be  such  as  to  make  the  location  exceed  the  statutory  limit,  and 
in  absence  of  other  proof  the  discovery  point  is  held  to  be  the  center  of  the 
vein  on  the  surface.     The  course  and  length  of  the  vein  should  be  marked 
upon  the  plat. 

134.  All  mineral  surveys  must  be  made  with  a  transit,  provided  with  a  solar 
attachment,  by  which  the  meridian  can  be  determined  independently  of  the 
magnetic  needle,   and   all   courses   must  be  referred   to   the  true  meridian. 
The  variation  should  be  noted  at  each  corner  of  the  survey.    The  true  course 
of  at  least  one  line  of  each  survey  must  be  ascertained  by  astronomical  ob- 
servations made  at  the  time  of  the  survey;    the  data  for  determining  the 


588  APPENDIX   B. 

same  and  details  as  to  how  these  data  were  arrived  at  must  be  given.  Or,  In 
lieu  of  the  foregoing  the  survey  must  be  connected  with  some  line  the  true 
course  of  which  has  been  previously  established  beyond  question,  and  in  a  sim- 
ilar manner,  and,  when  such  lines  exist,  it  is  desirable  in  all  cases  that  they 
should  be  used  as  a  proof  of  the  accuracy  of  subsequent  work. 

135.  Corner  No.  1  of  each  location  embraced  in  a  survey  must  be  connect- 
ed by  course  and  distance  with  nearest  corner  of  the  public  survey  or  with  a 
United  States  location  monument,  if  the  claim  lies  within  two  miles  of  such 
corner  or  monument.     If  both   are  within  the   required   distance,  the  con- 
nection must  be  with  the  corner  of  the  public  survey. 

136.  Surveys  and  connections  of  mineral  claims  may  be  made  in  suspended 
townships  in  the  same  manner  as  though  the  claims  were  upon  unsurveyed 
land,  except  as  hereinafter  specified,  by  connecting  them  with  independent 
mineral  monuments.     At  the  same  time,  the  position  of  any  public-land  cor- 
ner which  may  be  found  in  the  neighborhood  of  the  claim  should  be  noted, 
so  that,  in  case  of  the  release  of  the  township  from  suspension,  the  position 
of  the  claim  can  be  shown  on  the  plat. 

107.  A  mineral  survey  must  not  be  returned  with  its  connection  made  only 
with  a  corner  of  the  public  survey,  where  the  survey  of  the  township  within 
which  it  is  situated  is  under  suspension,  nor  connected  with  a  mineral  mon- 
ument alone,  when  situated  within  the  limits  of  a  township  the  regularity 
and  correctness  of  the  survey  of  which  is  unquestioned. 

138.  In  making  an  official  survey,  corner  No.  1  of  each  location  must  be  es- 
tablished at  the  corner  nearest  the  corner  of  the  public  survey  or  location 
monument,  unless  good  cause  is  shown  for  its  being  placed  otherwise.     If 
connections  are  given  to  both  a  corner  of  the  public  survey  and  location  mon- 
ument, corners  Nos.  1  should  be  placed  at  the  corner  nearest  the  corner  of 
the  public  survey.    When  a  boundary  line  of  a  claim  intersects  a  section  line, 
courses  and  distances  from  point  of  intersection  to  the  Government  corners 
at  each  end  of  the  half  mile  of  section  line  so  intersected  must  be  given. 

139.  In  case  a  survey  is  situated  in  a  district  where  there  are  no  corners 
of   the   public    survey    and   no   monuments   within    the   prescribed   limits,    a 
mineral  monument  must  be  established,  in  the  location  of  which  the  greatest 
care  must  be  exercised  to  insure  permanency  as  to  site  and  construction. 

140.  The  site,  when  practicable,  should  be  some  prominent  point,  visible 
for  a  long  distance  from  every  direction,  and  should  be  so  chosen  that  the  per- 
manency of  the  monument  will  not  be  endangered  by  snow,  rock,  or  landslides, 
or  other  natural  causes. 

141.  The  monument  should  consist  of  a  stone  not  less  than  30  inches  long, 
20  inches  wide,  and  6  inches  thick,  set  halfway  in  the  ground,  with  a  conical 
mound  of  stone  4  feet  high  and  6  feet  base  alongside.    The  letters  "U.  S.  L. 
M.,"   followed  by  the  consecutive  number  of  the  monument  in  the  district, 
must  be  plainly  chiseled  upon  the  stone.     If  impracticable  to  obtain  a  stone 
of  required  dimensions,  then  a  post  8  feet  long,  6  inches  square,  set  3  feet  in 
the  ground,  scribed  as  for  a  stone  monument,  protected  by  a  well-built  conical 
mound  of  stone  of  not  less  than  3  feet  high  and  6  feet  base  around  it,  may 
be  used.     The  exact  point  for  connection  must  be  indicated  on  the  monu- 
ment by  an  X  chiseled  thereon ;   if  a  post  is  used,  then  a  tack  must  be  driven 
into  the  post  to  indicate  the  point. 

142.  From    the   monument,   connections   by   course   and   distance    must   be 
taken  to  two  or  three  bearing  trees  or  rocks,  and  to  any  well-known  and 
permanent  objects  in  the  vicinity,  such  as  the  confluence  of  streams,  promi- 


LAND   OFFICE   REGULATIONS.  589 

nent  rocks,  buildings,  shafts,  or  mouths  of  adits.  Bearing  trees  must  be 
properly  scribed  "B.  T."  and  bearing  rocks  chiseled  "B.  R.,"  together  with 
the  number  of  the  location  monument ;  the  exact  point  on  the  tree  or  stone 
to  which  the  connection  is  taken  should  be  indicated  by  a  cross  or  other  un- 
mistakable mark.  Bearings  should  also  be  taken  to  prominent  mountain 
peaks,  and  the  approximate  distance  and  direction  ascertained  from  the 
nearest  town  or  mining  camp.  A  detailed  description  of  the  locating  monu- 
ment, with  a  topographical  map  of  its  location,  should  be  furnished  the 
office  of  the  surveyor-general  by  the  surveyor. 

143.  Corners  may  consist  of — 

First. — A  stone  at  least  24  inches  long  set  12  inches  in  the  ground,  with  a 
conical  mound  of  stone  1%  feet  high.  2  feet  base,  alongside. 

Second. — A  post  at  least  3  feet  long  by  4  inches  square,  set  18  inches  in 
the  ground  and  surrounded  by  a  substantial  mound  of  stone  or  earth. 

Third. — A  rock  in  place. 

A  stone  should  always  be  used  for  a  corner  when  possible,  and  when  so 
used  the  kind  should  be  stated. 

144.  All  corners  must  be  established  in  a  permanent  and  workmanlike  man- 
ner, and  the  corner  and  survey  number  must  be  neatly  chiseled  or  scribed  on 
the  sides  facing  the  claim.     The  exact  corner  point  must  be  permanently  in- 
dicated on  the  corner.     When  a  rock  in  place  is  used,  its  dimensions  above 
ground  must  be  stated  and  a  cross  chiseled  at  the  exact  corner  point. 

145.  In  case  the  point  for  the  corner  be  inaccessible  or  unsuitable  a  witness 
corner,  which  must  be  marked  with  the  letters  "W.  C."  in  addition  to  the  cor- 
ner and  survey  number,  should  be  established.     The  witness  corner  should 
be  located  upon  a  line  of  the  survey  and  as  near  as  possible  to  the  true  cor- 
ner, with  which  it  must  be  connected  by  course  and  distance.     The  reason 
why  it  is  impossible  or  impracticable  to  establish  the  true  corner  must  al- 
ways be  stated  in  the  field  notes,  and  in  running  the  next  course  it  should 
be  stated  whether  the  start  is  made  from  the  true  place  for  corner  or  from 
witness  corner. 

146.  The  identity  of  all  corners  should  be  perpetuated  by  taking  courses 
and  distances  to  bearing  trees,  rocks,  and  other  objects,  as  prescribed  in  the 
establishment  of   location   monuments,   and  when   no   bearings   are  given   it 
should  be  stated  that  no  bearings  are  available.     Permanent  objects  should 
be  selected  for  bearings  whenever  possible. 

147.  If  an  official  mineral  survey  has  been  made  in  the  vicinity,  within  *. 
reasonable  distance,  a  further  connecting  line  should  be  run  to  some  ccroor 
thereof ;    and  in  like  manner  all  conflicting  surveys  and  locations  should  be 
so  connected,  and  the  corner  with  which  connection  is  made  in  each  case  de- 
scribed.    Such  connections  will  be  made  and  conflicts  shown  according  to  the 
boundaries  of  the  neighboring  or  conflicting  claims  as  each  is  marked,  de- 
fined, and  actually  established  upon  the  ground.    The  mineral  surveyor  will 
fully  and  specifically  state  in  his  return  how  and  by  what  visible  evidences  he 
was  able  to  identfy  on  the  ground  the  several  conflicting  surveys  and  those 
which  appear  according  to  their  returned  tie  or  boundary  lines  to  conflict,  if 
they  were  so  identified,  and  report  errors  or  discrepancies  found  by  him  in 
any  such  surveys.     In  the  survey  of  contiguous  claims  which  constitute  a 
consolidated   group,   where   corners   are  common,    bearings   should   be   men- 
tioned but  once. 

148.  The  mineral  surveyor  should  note  carefully  all  topographical  features, 
of  the  claim,  taking  distances  on  his  lines  to  intersections  with  all  streams, 


590  APPENDIX   B. 

gulches,  ditches,  ravines,  mountain  ridges,  roads,  trails,  etc.,  with  their 
widths,  courses,  and  other  data  that  may  be  required  to  map  them  correctly. 
All  municipal  or  private  improvements,  such  as  blocks,  streets,  and  buildings, 
should  be  located. 

1-10.  If,  in  running  the  exterior  lines  of  a  claim,  the  survey  is  found  to 
conflict  with  the  survey  of  another  claim,  the  distances  to  the  points  of  in- 
tersection, and  the  courses  and  distances  along  the  line  intersected  from  an 
t-sr.-il  dished  corner  of  such  conflicting  claim  to  such  points  of  intersection, 
should  be  described  in  the  field  notes:  Provided,  That  where  a  corner  of 
the  conflicting  survey  falls  within  the  claim  being  surveyed,  such  corner 
should  be  selected  from  which  to  give  the  bearing,  otherwise  the  corner 
nearest  the  intersection  should  be  taken.  The  same  rule  should  govern  in 
the  survey  of  claims  embracing  two  or  more  locations  the  lines  of  which  in- 
tersect. 

150.  A  lode  and  mill-site  claim  in  one  survey  will  be  distinguished  by  the 
letters  "A"  and  "B"  following  the  number  of  the  survey.    The  corners  of  the 
mill  site  will  be  numbered  independently  of  those  of  the  lode.     Corner  No. 
1  of  the  mill  site  must  be  connected  with  a  corner  of  the  lode  claim  as  well 
as  with  a  corner  of  the  public  survey  or  United  States  location  monument. 

151.  When  a  placer  claim  includes  lodes,  or  when  several  contiguous  plac- 
er or  lode  locations  are  included  as  one  claim  in  one  survey,  there  must  be 
given  to  the  corners  of  each  location  constituting  the  same  a  separate  consec- 
utive numerical  designation,  beginning  with  corner  No.  1  in  each  case. 

152.  Throughout  the  description  of  the  survey,  after  each  reference  to  the 
lines  or  corners  of  a  location,  the  name  thereof  must  be  given,  and  if  un- 
surveyed,  the  fact  stated.     If  reference  is  made  to  a  location  included  in  a 
prior  official  survey,  the  survey  number  must  be  given,  followed  by  the  name 
of  the  location.    Corners  should  be  described  once  only. 

153.  The  total  area  of  each  location  and  also  the  area  in  conflict  with  each 
intersecting  survey  or  claim  should  be  stated;    also  the  total  area  claimed. 
But  when  locations  embraced  in  one  survey  conflict  with  each  other  such  con- 
flicts should  only  be  stated  in  connection  with  the  location  from  which  the 
conflicting  area  is  excluded. 

154.  It  should  be  stated  particularly  whether  the  claim  is  upon  surveyed 
or  unsurveyed  public  lands,  giving  in  the  former  case  the  quarter  section, 
township,  and  range  in  which  it  is  located,  and  the  section  lines  should  be 
indicated  by  full  lines  and  the  quarter-section  lines  by  dotted  lines. 

155.  The  title-page  of  the  field  notes  must  contain  the  post-office  address  of 
the  claimant  or  his  authorized  agent. 

156.  In  the  mineral  surveyor's  report  of  the  value  of  the  improvements  all 
actual  expenditures  and  mining  improvements  made  by  the  claimant  or  his 
grantors,  having  a  direct  relation  to  the  development  of  the  claim,  must  be 
included  in  the  estimate. 

157.  The  expenditures  required  may  be  made  from  the  surface  or  in  running 
a  tunnel,  drifts,  or  crosscuts  for  the  development  of  the  claim.    Improvements 
of  any  other  character,  such  as  buildings,  machinery,  or  roadways,  must  be 
excluded  from  the  estimate,  unless  it  is  shown  clearly  that  they  are  associated 
with  actual  excavations,  such  as  cuts,  tunnels,  shafts,  etc.,  are  essential  to 
the  practical  development  of  and  actually  facilitate  the  extraction  of  mineral 
from  the  claim. 

158.  All  mining  and  other  improvements  claimed  will  be  located  by  courses 
and  distances  from  corners  of  the  survey,  or  from  points  on  the  center  or 


LAND   OFFICE    REGULATIONS.  591 

side  lines,  specifying  with  particularity  and  detail  the  dimensions  and  char- 
acter of  each,  and  the  improvements  upon  each  location  should  be  numbered 
consecutively,  the  point  of  discovery  being  always  No.  1.  Improvements  made 
by  a  former  locator  who  has  abandoned  his  claim  can  not  be  included  in  the 
estimate,  but  should  be  described  and  located  in  the  notes  and  plat. 

159.  In  case  of  a  lode  and  mill-site  claim  in  the  same  survey  the  expendi- 
ture of  five  hundred  dollars  must  be  shown  upon  the  lode  claim. 

160.  If  the  value  of  the  labor  and  improvements  upon  a  mineral  claim  is  less 
than  .five  hundred  dollars  at  the  time  of  survey,  the  mineral  surveyor  may 
file  with  the  surveyor-general  supplemental  proof  showing  five  hundred  dol- 
lars expenditure  made  prior  to  the  expiration  of  the  period  of  publication. 

161.  The  mineral  surveyor  will  return  with  his  field  notes  a  preliminary 
plat  on  blank  sent  to  him  for  that  purpose,  protracted  on  a  scale  of  two 
hundred  feet  to  an  inch,  if  practicable.     In  preparing  plats  the  top  is  north. 
Copy  of  the  calculations  of  areas  by  double  meridian  distances  and  of  all 
triangulations  or  traverse  lines  must  be  furnished.     The  lines  of  the  claim 
surveyed  should  be  heavier  than  the  lines  of  conflicting  claims. 

162.  Whenever  a  survey  has  been  reported  in  error  the  surveyor  who  made 
it  will  be  required  to  promptly  make  a  thorough  examination  upon  the  prem- 
ises and  report  the  result,  under  oath,  to  the  surveyor-general's  office.     In 
case  he  finds  his  survey  in  error  he  will  report  in  detail  all  discrepancies 
with  the  original  survey  and  submit  any  explanation  he  may  have  to  offer  as 
to  the  cause.    If,  on  the  contrary,  he  should  report  his  survey  correct,  a  joint 
survey  will  be  ordered  to  settle  the  differences  with  the  surveyor  who  re- 
ported the  error.     A  joint  survey  must  be  made  within  ten  days  after  the 
date  of  order  unless  satisfactory  reasons  are  submitted,  under  oath,  for  a 
postponement.     The  field  work  must  in  every  sense  of  the  term  be  a  joint 
and  not  a  separate  survey,  and  the  observations  and  measurements  taken  with 
the  same  instrument  and  chain,  previously  tested  and  agreed  upon. 

163.  The  mineral  surveyor  found  in  error,  or,  if  both  are  in  error,  the  one 
who  reported  the  same,  will  make  out  the  field  notes  of  the  joint  survey, 
which,  after  being  duly  signed  and  sworn  to  by  both  parties,  must  be  trans- 
mitted to  the  surveyor-general's  office. 

164.  Inasmuch  as  amended  surveys  are  ordered  only  by  special  instruc- 
tions from  the  General  Land  Office,   and  the  conditions  and  circumstances 
peculiar  to  each  separate  case  and  the  object  sought  by  the  required  amend- 
ment, alone  govern  all  special  matters  relative  to  the  manner  of  making  such 
survey  and  the  form  and  subject-matter  to  be  embraced  in  the  field  notes 
thereof,  but  few  general  rules  applicable  to  all  cases  can  be  laid  down. 

165.  The  amended  survey  must  be  made  in  strict  conformity  with,  or  be 
embraced  within,  the  lines  of  the  original  survey.     If  the  amended  and  orig- 
inal surveys  are  identical,  that  fact  must  be  clearly   and  distinctly  stated 
in  the  field  notes.     If  not  identical,  a  bearing  and  distance  must  be  given 
from  each  established  corner  of  the  amended  survey  to  the  corresponding  cor- 
ner of  the  original  survey.    The  lines  of  the  original  survey,  as  found  upon 
the  ground,  must  be  laid  down  upon  the  preliminary  plat  in  such  manner  as 
to  contrast  and  show  their  relation  to  the  lines  of  the  amended  survey. 

166.  The  field  notes  of  the  amended  survey  must  be  prepared  on  the  same 
size  and  form  of  blanks  as  are  the  field  notes  of  the  original  survey,  and  the 
word  "amended"  must  be  used  before  the  word  "survey"  wherever  it  occurs 
in  the  ftold  notes. 


592  APPENDIX   B. 

107.  Mineral  surveyors  are  required  to  make  full  examinations  of  all  plac- 
er claims  at  the  time  of  survey  and  file  with  the  field  notes  a  descriptive  re- 
port, in  which  will  be  described — 

(a)  The  quality  and  composition  of  the  soil,  and  the  kind  and  amount  of 
timber  and  other  vegetation. 

(b)  The  locus  and  size  of  streams,  and  such  other  matter  as  may  appear 
upon  the  surface  of  the  claims. 

(c)  The  character  and  extent  of  all  surface   and  underground  workings, 
whether  placer  or  lode,  for  mining  purposes,  locating  and  describing  them. 

(d)  The  proximity  of  centers  of  trade  or  residence. 

(e)  The  proximity  of  well-known  systems  of  lode  deposits  or  of  individual 
lodes. 

(f)  The  use  or  adaptability  of  the  claim  for  placer  mining,  and  whether 
water  has  been  brought  upon  it  in  sufficient  quantity  to  mine  the  same,  or 
whether  it  can  be  procured  for  that  purpose. 

(g)  What  works  or  expenditures  have  been  made  by  the  claimant  or  his 
grantors  for  the  development  of  the  claim,  and  their  situation  and  location 
with  respect  to  the  same  as  applied  for. 

(h)  The  true  situation  of  all  mines,  salt  licks,  salt  springs,  and  mill  sites 
which  come  to  the  surveyor's  knowledge,  or  a  report  by  him  that  none  exist 
on  the  claim,  as  the  facts  may  warrant. 

(i)  Said  report  must  be  made  under  oath  and  duly  corroborated  by  one  or 
more  disinterested  persons. 

168.  The  employing  of  claimants,  their  attorneys,  or  parties  in  interest,  as 
assistants  in  making  surveys  of  mineral  claims  will  not  be  allowed. 

169.  The  field  work  must  be  accurately  and  properly  performed  and  returns 
made  in  conformity  with  the  foregoing  instructions.     Errors  in  the  survey 
must  be  corrected  at  the  surveyor's  own  expense,  and  if  the  time  required 
in  the  examination  of  the  returns  is  increased  by  reason  of  neglect  or  careless- 
ness, he  will  be  required  to  make  an  additional  deposit  for  office  work.     He 
will  be  held  to  a  strict  accountability  for  the  faithful  discharge  of  his  duties, 
and  will  be  required  to  observe  fully  the  requirements  and  regulations  in 
force  as   to   making  mineral   suveys.     If  found  incompetent  as   a   suveyor, 
careless  in  the  discharge  of  his  duties,  or  guilty  of  a  violation  of  said  regu- 
lations, his  appointment  will  be  promptly  revoked. 

R.  A.  Ballinger,  Commissioner. 
Approved  May  21,  1907. 

James  Rudolph  Garfield,  Secretary. 


APPENDIX  C. 

COAL-LAND  LAWS  AND  LAND  OFFICE  REGULATIONS 
OF  APRIL  12,  1907,  THEREUNDER,  WITH  AMEND- 
MENTS AND  SUPPLEMENTAL  CIRCULARS, 
REPRINTED  JULY  11,  1908. 


Department  of  the  Interior,  General  Land  Office, 

Washington,  D.  C.,  April  12,  1907. 

The  following  coal-land  laws  relating  to  the  public-land  states  and  terri- 
tories and  to  the  district  of  Alaska,  together  with  the  rules  and  regulations 
as  now  applicable,  are  herewith  published  for  the  instruction  of  the  local 
land  officers  and  the  information  of  intending  applicants.  All  rules  and  regu- 
lations heretofore  issued  under  said  laws  are  hereby  abrogated, 


PART  I. 

[Title  XXXII,  Chapter  Six.] 

MINERAL  LANDS  AND  MINING  RESOURCES. 
Entry  of  coal  lands. 

Sec.  2347.  Every  person  above  the  age  of  twenty-one  years,  who  Is  a  citizen 
of  the  United  States,  or  who  has  declared  his  intention  to  become  such,  or 
any  association  of  persons  severally  qualified  as  above,  shall,  upon  applica- 
tion to  the  register  of  the  proper  land  office,  have  the  right  to  enter,  by  legal 
subdivisions,  any  quantity  of  vacant  coal  lands  of  the  United  States  not  other- 
wise appropriated  or  reserved  by  competent  authority  not  exceeding  one  hun- 
dred and  sixty  acres  to  such  individual  person,  or  three  hundred  and  twenty 
acres  to  such  association,  upon  payment  to  the  receiver  of  not  less  than  ten 
dollars  per  acre  for  such  lands  where  the  same  shall  be  situated  more  than 
fifteen  miles  from  any  completed  railroad,  and  not  less  than  twenty  dollars 
per  acre  for  such  lands  as  shall  be  within  fifteen  miles  of  such  road.  3 
March,  1873,  c.  279,  s.  1,  v.  17,  p.  607. 

Pre-emption  of  coal  lands. 

Sec.  2348.  Any  person  or  association  of  persons  severally  qualified,  as  above 
provided,  who  have  opened  and  improved,  or  shall  hereafter  open  and  im- 
prove, any  coal  mine  or  mines  upon  the  public  lands,  and  shall  be  in  actual 
possession  of  the  same,  shall  be  entitled  to  a  preference  right  of  entry,  under 
the  preceding  section,  of  the  mines  so  opened  and  improved:  Provided,  That 
when  any  association  of  not  less  than  four  persons,  severally  qualified  as 
above  provided,  shall  have  expended  not  less  than  five  thousand  dollars  in 
CosT.MiN.L.— 38  (593) 


594  APPENDIX   C. 

working  and  improving  any  such  mine  or  mines,  such  association  may  enter 
not  exceeding  six  hundred  and  forty  acres,  including  such  mining  improve- 
ments. Ibid.,  s.  2. 

Pre-emption  claims  of  coal  land  to  be  presented  within  sixty  days,  etc. 

Sec.  2349.  All  claims  under  the  preceding  section  must  be  presented  to 
the  register  of  the  proper  land  district  within  sixty  days  after  the  date  of 
actual  possession  and  the  commencement  of  improvements  on  the  land,  by 
the  filing  of  a  declaratory  statement  therefor;  but  when  the  township  pint 
is  not  on  file  at  the  date  of  such  improvement,  filing  must  be  made  within 
sixty  days  from  the  receipt  of  such  plat  at  the  district  office;  and  where  the 
improvements  shall  have  been  made  prior  to  the  expiration  of  three  months 
from  the  third  day  of  March,  eighteen  hundred  and  seventy-three,  sixty  days 
from  the  expiration  of  such  three  months  shall  be  allowed  for  the  filing  of 
a  declaratory  statement,  and  no  sale  under  the  provisions  of  this  section  shall 
be  allowed  until  the  expiration  of  six  months  from  the  third  day  of  March, 
eighteen  hundred  and  seventy-three.  Ibid.,  s.  3. 

Only  one  entry  allowed. 

Sec.  2350.  The  three  preceding  sections  shall  be  held  to  authorize  only  one 
entry  by  the  same  person  or  association  of  persons;  and  no  association  of 
persons  any  member  of  which  shall  have  taken  the  benefit  of  such  sections, 
either  as  an  individual  or  as  a  member  of  any  other  association,  shall  enter 
or  hold  any  other  lands  under  the  provisions  thereof;  and  no  member  of  any 
association  which  shall  have  taken  the  benefit  of  such  sections  shall  enter  or 
hold  any  other  lands  under  their  provisions ;  and  all  persons  claiming  under 
section  twenty-three  hundred  and  forty-eight  shall  be  required  to  prove  their 
respective  rights  and  pay  for  the  lands  filed  upon  within  one  year  from  the 
time  prescribed  for  filing  their  respective  claims ;  and  upon  failure  to  file  the 
proper  notice,  or  to  pay  for  the  land  within  the  required  period,  the  same 
shall  be  subject  to  entry  by  any  other  qualified  applicant.  Ibid.,  s.  4. 

Conflicting  claim. 

Sec.  2351.  In  case  of  conflicting  claims  upon  coal-lands  where  the  improve- 
ments shall  be  commenced,  after  the  third  day  of  March,  eighteen  hundred 
and  seventy-three,  priority  of  possession  and  improvement,  followed  by  proper 
filing  and  continued  good  faith,  shall  determine  the  preference-right  to  pur- 
chase. And  also  where  improvements  have  already  been  made  prior  to  the 
third  day  of  March,  eighteen  hundred  and  seventy-three,  division  of  the  land 
claimed  may  be  made  by  legal  subdivisions,  to  include,  as  near  as  may  be, 
the  valuable  improvements  of  the  respective  parties.  The  Commissioner  of 
the  General  Land  Office  is  authorized  to  issue  all  needful  rules  and  regula- 
tions for  carrying  into  effect  the  provisions  of  this  and  the  four  preceding 
sections.  Ibid.,  s.  5. 

Rights  reserved. 

Sec.  2352.  Nothing  in  the  five  preceding  sections  shall  be  construed  to 
destroy  or  impair  any  rights  which  may  have  attached  prior  to  the  third  day 
of  March,  eighteen  hundred  and  seventy-three,  or  to  authorize  the  sale  of 
lands  valuable  for  mines  of  gold,  silver,  or  copper.  Ibid.,  s.  6. 

RULES  AND  REGULATIONS. 

1.     The  sale  of  coal  lands  is  provided  for — 

(a)  By  ordinary  cash  entry  under  section  2347 ; 

(b)  By  cash  entry  under  a  preference  right  to  purchase  acquired  by  com- 
pliance with  the  provisions  of  section  2348. 


COAL   LAND   LAWS   AND    REGULATIONS.  505 

2.  Coal  lands  may  be  entered  only  after  survey  and  by  legal  subdivisions. 
The  lands  must  be  vacant  and  unappropriated  and  must  contain  workable 
deposits  of  coal  and  must  not  be  valuable  for  mines  of  gold,  silver,  or  copper. 
Lands  containing  lignites  are  included  under  the  term  "coal  lands." 

3.  Entry  by  an  individual  may  be  made  only  by  a  person  above  the  ago 
of  21  years  who  is  a  citizen  of  the  United  States  or  has  declared  his  inten- 
tion to  become  such,  and  shall  not  embrace  more  than  160  acres.     Entry  by 
MII  association  of  persons  may  embrace  320  acres,  but  each  person  composing 
the  association  must  be  qualified  as  in  the  case  of  an  individual  entryman. 
A    corporation  is  held  to  be  an  association  under  the  provisions  of  the  coal- 
land  law. 

4.  When  an  association  of  not  less  than  four  persons,  severally  qualified  as 
required  in  the  case  of  an  individual  entryman,  shall  have  expended  not  less 
than  $5,000  in  working  and  improving  a  mine  or  mines  of  coal  upon  the 
public  lands,  such  association  may  enter  not  exceeding  640  acres,  including 
such  mining  improvements. 

5.  But  one  entry  of  coal  lands  by  any  person  or  association  of  persons  is 
allowed  by  the  law.    No  person  who,  and  no  association  any  member  of  which, 
either  as  an  individual  or  as  a  member  of  an  association,  shall  have  had  the 
benefits  of  the  law  may  enter  or  hold  any  other  coal  lauds  thereunder.     The 
right  so  to  enter  or  hold  is  exhausted  whether  an  entry  embraces  in  any  in- 
stance the  maximum  area  allowed  by  the  law  or  less ;  also  by  the  acquisition 
of  a  preference  right  of  entry  unless  sufficient  cause  for  the  abandonment 
thereof  is  shown.     Assignment  of  a  preference  right  of  entry  under  section 
2348,  Revised  Statutes,  will  not  hereafter  be  recognized. 

6.  Information  will  be  furnished  registers  and  receivers  by  the  Commis- 
sioner of  the  General  Land  Office  of  the  price  at  which  all  coal  lands  in  their 
respective  districts  will  be  offered.    The  local  land  officers  will  from  time  to 
time  be  furnished  with  schedules  and  maps  (1)  showing  lands  known  to  lie 
without  ascertained  coal  areas  and  open  to  entry  under  the  general  land  laws, 
according  to  the  character  of  each  particular  tract;  (2)  showing  lands  known 
to  contain  workable  deposits  of  coal,  whereon  prices  will  be  fixed  upon  in- 
formation derived  from  field  examination ;  and  (3)  showing  lands  containing 
coal  of  such  character  as  may,  from  their  location  at  a  distance  from  trans- 
portation lines,  be  sold  at  the  minimum  price  fixed  by  the  statute  as  here- 
inafter stated. 

Local  land  officers  will  allow  coal  entries  for  lands  in  the  first  and  third 
classes  at  the  minimum  price  fixed  by  the  statute,  and  for  those  in  the  second 
class  at  the  prices  stated  in  the  schedules  and  maps  furnished  them.  Lands 
listed  in  classes  2  and  3  are  subject  to  entry  under  the  coal-land  laws  only, 
unless  shown  by  the  applicant  to  be  of  such  character  as  to  be  subject  to 
entry  under  some  other  law.  For  those  lands  listed  as  of  the  first  and  third 
classes  (when  entered  under  the  coal-land  laws)  the  price  is  not  less  than  $10 
per  acre  when  situated  more  than  15  miles  from  a  completed  railroad  and 
$20  when  situated  within  15  miles  of  a  completed  railroad;  and  where  the 
lands  lie  partly  without  such  limit,  the  higher  price  must  be  paid  for  each 
smallest  legal  subdivision  the  greater  part  of  which  lies  within  15  miles  of 
such  railroad.  The  term  "completed  railroad"  is  construed  to  mean  a  rail- 
road actually  constructed,  equipped,  and  operating  at  the  date  of  entry.  The 
distance  is  to  be  calculated  from  the  point  on  such  railroad  nearest  the  lands 
applied  for,  and  the  facts  in  each  case  must  be  shown  by  the  affidavit  of  the 
applicant,  corroborated  by  the  affidavit  of  some  disinterested  credible  person 
having  actual  knowledge  thereof. 


596  APPENDIX   C. 

7.  A  preference  right  of  entry  accrues  only  where  a  person  or  association 
of  persons,  severally  qualified,  have  opened  and  improved  a  coal  mine  or 
mines  upon  the  public  lands  and  shall  be  in  actual  possession  thereof  and  not 
by  the  filing  of  a  declaratory  statement.     A  perfunctory  compliance  with  tlie 
law  in  this  respect  will  not  suffice,  but  a  mine  or  mines  of  coal  must  be  in  fact 
opened  and  improved  on  the  land  claimed. 

There  is  no  authority  under  which  a  coal  mine  upon  public  lands,  entry 
not  having  been  made,  may  be  worked  and  operated  for  profit  and  sale  of  the 
coal,  or  beyond  the  opening  and  improving  of  the  mine  as  a  condition  precedent 
to  a  preference  right  under  section  2348  of  the  Revised  Statutes.  To  preserve 
a  preference  right  of  entry  specified  in  the  statute  the  person  or  association 
of  persons  having  acquired  the  same  must  present  to  the  register  of  the  prop- 
er land  district,  within  sixty  days  from  the  date  of  actual  possession  and 
commencement  of  improvements  upon  the  land,  a  declaratory  statement  there- 
for in  all  cases  where  the  township  plat  has  been  filed.  When  the  township 
plat  is  not  on  file  at  the  date  of  such  improvement  such  declaratory  statement 
must  be  presented  within  sixty  days  from  the  receipt  of  such  plat  at  the  dis- 
trict land  office. 

8.  After  entry  has  been  allowed  the  local  officers  have  no  authority  to 
order  a  hearing  or  make  further  determination  with  respect  to  it,  except  upon 
instructions  from  the  General  Land  Office.     They  will,  however,  receive  all 
protests  against  it  and  promptly  forward  them,  together  with  a  statement  of 
the  facts  shown  by  their  records,  for  consideration  and  action. 

9.  Prior  to  entry  it  is  competent  for  the  local  officers  to  order  a  hearing 
on  sufficient  grounds  set  forth  under  oath  by  any  protestant. 

10.  When  it  is  sought  to  purchase  otherwise  than  in  the  exercise  of  a  pref- 
erence right  the  party  will  himself  make  oath  to  the  following  application, 
which  must  be  presented  to  the  register: 

I, ,  hereby  apply,  under  the  provisions  of  the  Revised  Statutes  of  the 

United  States  relating  to  the  sale  of  coal  lands  of  the  United  States,  to  pur- 
chase the  quarter  of  section  ,  in  township  of  range 

,  in  the  district  qf  lands  subject  to  sale  at  the  land  office  at ,  and 

containing acres ;  and  I  solemnly  swear  that  no  portion  of  said  tract 

is  in  the  possession  of  any  other  party  or  parties  who  has  or  have  commenced 
improvements  thereon  for  the  development  of  coal ;  that  I  am  twenty-one 
years  of  age;  a  citizen  of  the  United  States  (or  have  declared  my  intention 
to  become  a  citizen  of  the  United  States),  and  have  never  held,  except 

or  purchased  any  lands  under  said  act,  either  as  an  individual  or  as 

a  member  of  an  association;  that  I  make  this  application  in  good  faith  for 
my  own  benefit,  and  not,  directly  or  indirectly,  in  whole  or  in  part,  in  behalf 
of  any  other  person  or  persons  whomsoever ;  and  I  do  further  swear  that  I 
am  well  acquainted  with  the  character  of  said  described  land,  and  with  each 
and  every  legal  subdivision  thereof;  that  my  knowledge  of  said  land  is  such 
as  to  enable  me  to  testify  understandingly  with  regard  thereto;  that  said 
land  contains  workable  deposits  of  coal;  that  there  is  not  to  my  knowledge 
within  the  limits  thereof  any  valuable  vein  or  lode  of  quartz  or  other  rock 
in  place  bearing  gold,  silver,  or  copper,  and  that  there  is  not  within  the  limits 
of  said  land,  to  my  knowledge,  any  valuable  deposit  of  gold,  silver,  or  copper. 
So  help  me  God. 

11.  Where  a  preference  right  of  entry  is  sought  to  be  preserved  the  required 
declaratory  statement  must  be  substantially  as  follows: 

I, ,  do  hereby  declare  my  intention  to  purchase,  in  the  exercise  of  a 

preference  right,  under  the  provisions  of  the  Revised  Statutes  of  the  United 


COAL  LAND  LAWS  AND  REGULATIONS.  597 

States  relating  to  the  sale  of  the  coal  lands  of  the  United  States,  the 

quarter  of  section of  township of  range ,  in  the  district 

of  the  lands  subject  to  sale  at  the  district  land  office  at ;   and  I   do 

solemnly  swear  that  I  am* years  of  age  and  a  citizen  of  the  Unitvd 

States  (or  have  declared  ny  intention  to  become  a  citizen  of  the  United 
States) ;  that  I  have  never,  either  as  an  individual  or  as  a  member  of  an  as- 
sociation, held,  except or  purchased  any  coal  lands  under  the  afore- 
said provisions  of  the  Revised  Statutes ;  that  I  was  in  possession  of,  and  com- 
menced improvements  on,  said  tract  on  the day  of ,  A.  D.  11).  ., 

and  have  ever  since  remained  in  actual  possession  continuously ;  that  I  have 
opened  and  improved  a  valuable  mine  of  coal  thereon,  and  have  expended  in 

labor  and  improvements  on  said  mine  the  sum  of dollars,  the  labor  and 

improvements  being  as  follows:  (Here  describe  the  nature  and  character  of 
the  improvements);  and  I  do  furthermore  solemnly  swear  that  I  am  well  ac- 
quainted with  the  character  of  said  described  land  and  with  each  and  every 
legal  subdivision  thereof;  that  my  knowledge  of  said  land  is  such  as  to  en- 
able me  to  testify  understandingly  with  regard  thereto ;  that  there  is  not. 
to  my  knowledge,  within  the  limits  thereof  any  valuable  vein  or  lode  of  quartz 
or  other  rock  in  place  bearing  gold,  silver,  or  copper,  and  that  there  is  not 
within  the  limits  of  said  land,  to  my  knowledge,  any  valuable  deposit  of  gold, 
silver,  or  copper.  So  help  me  God. 

12.  One  year  from  and  after  the  expiration  of  the  period  allowed  for  filing 
the  declaratory  statement  is  given  within  which   to  make  proof  and  pay- 
ment ;  but  the  local  officers  will  allow  no  party  to  make  final  proof  and  pay- 
ment except  on  special  written  notice  to  all  others  who  appear  on  their  records 
as  claimants  to  the  same  tract.     No  notice  will  be  given  to  parties  whose 
declaratory  statements  have  expired  by  limitation  under  the  law. 

13.  A  declarant  will  not  be  permitted  to  file  after  the  expiration  of  the 
sixty  days  allowed*  nor  to  exercise  a  preference  right  of  purchase  after  the 
expiration  of  the  year. 

14.  When  it  is  sought  to  purchase,  in  the  exercise  of  a  preference  right, 
the  applicant  must  himself  make  the  following  affidavit,  which  must  be  pre- 
sented to  the  register: 

I,    ,  claiming,  under  the  provisions  of  the  Revised  Statutes  of  the 

United  States  relating  to  the  sale  of  the  coal  lands  of  the  United  States,  the 
preference  right  to  purchase  the  quarter  of  section  ,  in  town- 
ship   of  range ,  subject  to  sale  at  the  district  land  office  at 

hereby  apply  to  purchase  and  enter  the  same;  and  I  do  solemnly  swear  that 

I  have  not  hitherto  held,  except or  purchased,  either  as  an  individual 

or  as  a  member  of  an  association,  any  coal  lauds  under  the  aforesaid  provi- 
sions of  the  law ;  that  I  have  expended  in  developing  coal  mines  on  said  tract, 
in  labor  and  improvements,  the  sum  of dollars,  the  nature  of  such  im- 
provements being  as  follows:  ;  that  I  am  now  in  the  actual 

possession  of  said  mines,  and  make  the  entry  in  good  faith  for  my  own  bene- 
fit, and  not,  directly  or  indirectly,  in  whole  or  in  part,  in  behalf  of  any  per- 
son or  persons  whomsoever;  and  I  do  furthermore  swear  that  I  am  well  ac- 
quainted with  the  character  of  said  described  land,  and  with  each  and  every 
legal  subdivision  thereof;  that  my  knowledge  of  said  land  is  such  as  to  en- 
able me  to  testify  understandingly  with  regard  thereto;  that  said  land  con- 
tains workable  deposits  of  coal;  that  there  is  not  to  my  knowledge,  within 
the  limits  thereof  any  valuable  vein  or  lode  of  quartz  or  other  rock  in  place 
bearing  gold,  silver,  or  copper,  and  that  there  is  not  within  the  limits  of  said 

*But  see  Charles  S.  Morrison  (On  Review)  36  Land  Dec.  Dep.  Int.  319. 


598  APPENDIX   C. 

land,  to  my  knowledge,  any  valuable  deposits  of  gold,  silver,  or  copper.  Sa 
help  me  God. 

15.  Where  purchase  and  entry,  whether  in  the  exercise  of  a  preference  right 
or  otherwise,  is  made  by  an  association,  each  member  thereof  must  sub- 
scribe and  swear  to  the  application  or  affidavit,  the  necessary  changes  being 
made  to  cover  the  joint  possession  and  expenditure  and  the  purchase  and  en- 
try in  their  joint  interest 

1C.  Each  application,  declaratory  statement,  and  affidavit,  forms  whereof 
are  given  above,  must  be  verified  before  the  register  or  receiver  or  some  of- 
ficer authorized  by  law  to  administer  oaths  in  the  land  district  wherein  the 
lands  involved  are  situate.  [Amendment  of  April  29,  1908.] 

17.  Upon  the  filing  of  an  application  to  purchase  coal  lands  under  the  pro- 
visions of  paragraphs  10  or  14  the  applicant  will  be  required,  at  his  own  ex- 
pense, to  publish  a  notice  of  said  application  in  a  newspaper  nearest  the  lands, 
to  be  designated  by  the  register,  for  a  period  of  thirty  days,  during  which 
time  a  similar  notice  must  be  posted  in  the  local  land  office  and  in  a  con- 
spicuous place  on  the  land.     The  notice  should  describe  the  land  applied  for 
and  state  that  the  purpose  thereof  is  to  allow  all  persons  claiming  the  land 
applied  for,  or  desiring  to  show  that  the  applicant's  coal  entry  should  not  be 
allowed  for  any  reason,  an  opportunity  to  file  objections  with  the  local  land 
officers. 

Publication  must  be  made  sufficiently  in  advance  to  permit  entry  within  the 
year  specified  by  the  statute. 

18.  After  the  thirty  days  period  of  newspaper  publication  has  expired,  the 
claimant  will  furnish  from  the  office  of  publication  a  sworn  statement  (in- 
cluding an  attached  copy  of  the  published  notice)  that  the  notice  was  pub- 
lished for  the  required  period,  giving  the  first  and  last  date  of  such  publica- 
tion, and  his  own  affidavit,  or  that  of  some  credible  person  having  personal 
knowledge  of  the  fact,  showing  that  the  notice  aforesaid  remained  conspicu- 
ously posted  upon  the  land  sought  to  be  patented  during  said  thirty  days  pub- 
lication, giving  the  dates.     The  register  shall  certify  to  the  fact  that  the 
notice  was  posted  in  his  office  for  the  full  period  of  thirty  days,  the  certificate 
to  state  distinctly  when  such  posting  was  done  and  how  long  continued,  giving 
the  dates.    In  no  case  shall  entry  be  allowed  until  the  proofs  specified  have 
been  filed. 

The  claimant  will  be  required  within  thirty  days  after  the  expiration  of  the 
period  of  newspaper  publication  to  furnish  the  proofs  specified  in  said  para- 
graph and  tender  the  purchase  price  of  the  land.  Should  the  specified  proofs 
and  purchase  price  be  not  furnished  and  tendered  within  this  time,  the  local 
land  officers  will  thereupon  reject  the  application,  subject  to  appeal.  Further- 
more, in  the  exercise  of  a  preference  right  to  purchase,  no  part  of  the  thirty- 
day  period  specified  herein  may  extend  beyond  the  year  fixed  by  the  statute. 
[Amendment  of  November  30,  1907.] 

19.  Of  the  following  forms,  the  one  appropriate  to  the  sections  of  the  Re- 
vised Statutes  under  which  application  is  made  should  be  used  for  publication 
of  all  notices  of  application  to  enter  coal  lands: 

-  \ 
NOTICE  FOB  PUBLICATION. 

Coal  Entry. 
(Sec.  2347,  R.  S.) 

Land  Office,  19... 

Notice  Is  hereby  given  that of  ,  county  of  state  (or 

territory)  of  has  this  day  filed  in  this  office  his  application  to  pur- 


COAL    LAND   LAWS   AND   REGULATIONS.  5rJ9 

chase,  under  the  provisions  of  section  2317,  U.  S.  Revised  Statutes,  the 

of  section  No ,  township  No ,  range  No 

Any  and  all  persons  claiming  adversely  the  lands  described,  or  desiring  to 
object  for  any  reason  to  the  sale  thereof  to  applicant,  should  file  their  af- 
fidavits of  protest  in  this  office  on  or  before  the day  of ,  19.  ., 

otherwise  the  application  may  be  allowed. 

,  Register. 

NOTICE  FOB  PUBLICATION. 

Coal   Entry. 
(Sees.  2348-52,  R.  S.) 

Land  Office, ,  ID... 

Notice  is  hereby  given  that ,  of   ,  county  of   ,  state  (or 

territory)  of ,  who,  on  the day  of ,  19.  .,  filed  in  this  office 

his  coal  declaratory  statement  for  the of  section  No ,  township 

No ,  range  No ,  has  this  day  filed  in  this  office  his  application 

to  purchase  said  land  under  the  provisions  of  sections  2348  to  2352,  U.   S. 
Revised  Statutes. 

Any  and  all  persons  claiming  adversely  the  lands  described,  or  desiring  to 
object  for  any  reason  to  the  entry  thereof  by  applicant,  should  file  their  af- 
fidavits of  protest  in  this  office  on  or  before  the day  of ,  19. .. 

,  Register. 

20.  When  it  is  sought  to  purchase,  either  by  ordinary  cash  entry  or  in  the 
exercise  of  a  preference  right,  the  register,  if  he  finds  the  tract  applied  for 
is  vacant,  surveyed,  and  unappropriated,  and  that  the  claimant  has  complied 
with  all  the  laws  and  regulations  relating  to  the  acquisition  of  coal  lands, 
will  so  certify  to  the  receiver,  stating  the  prescribed  purchase  price,  and  the 
applicant  must  then  pay  the  same. 

21.  The  receiver  will  then  issue  to  the  purchaser  a  duplicate  receipt,  and  at 
the  close  of  the  month  the  register  and  receiver  will  make  returns  of  the  sale 
to  the  General  Land  Office,  whence,  if  the  proceedings  are  found  to  be  regular, 
a  patent  will  be  issued ;  and  on  surrender  of  the  duplicate  receipt  such  patent 
will  be  delivered,  at  the  option  of  the  patentee,  either  by  the  Commissioner  at 
Washington  or  by  the  register  at  the  district  land  office. 

22.  An  application  for  cash  entry  will  be  subject  to  any  valid  adverse  right 
which  may  have  attached  to  the  same  land  pursuant  to  section  2348,  Revised 
Statutes. 

23.  Qualified   persons   or  associations   who   are  lawfully  in  possession   of 
tracts  of  coal  lands  which   are  still   unsurveyed  may,  under  sections  2401, 
2402,  and  2403,  Revised  Statutes,  as  amended  by  the  act  of  August  20,  1894* 
apply  to  the  surveyor-general  for  the  survey  of  the  township  or  townships, 
or  portions  thereof,  embracing  the  lands  claimed,  to  be  specified  as  nearly  as 
practicable.     Each  such  application  must  be  accompanied  by  the  affidavit  of 
the  applicant  or  applicants,  duly  corroborated  by  at  least  two  competent  per- 
sons, setting  forth  the  qualifications  of  the  former  as  claimant  or  claimants 
of  the  land,  the  facts  constituting  their  possession,  the  character  of  the  land, 
and  such  other  facts  in  the  case  as  are  essential  in  that  connection.     If  the 
surveyor-general  approves  the  application  he  will  thereupon  transmit  it  to  the 
General  Land  Office  with  the  affidavits  and  his  report. 

24.  The  "Rules  of  Practice  in  Cases  before  the  United  States  District  Land 
Offices,  the  General  Land  Office,  and  the  Department '  of  the  Interior"  will, 


600  APPENDIX   C. 

as  far  as  applicable,  govern  all  cases  and  proceedings  arising  under  the  stat- 
utes providing  for  the  sale  of  coal  lands. 

25.  Local  officers  will  report  at  the  close  of  each  month,  as  "sales  of  coal 
lands"  all  filings  and  entries  in  separate  abstracts,  commencing  with  No.  1 
and  thereafter  proceeding  consecutively  in  the  order  of  their  reception. 
Where  a  series  of  numbers  has  already  been  commenced  by  sale  of  coal  lands 
they  will  continue  the  same  without  change. 


PART  II.— COAL  LANDS  IN  ALASKA. 

[Act  June  6,  1900  (31  Stat,  658).] 
An  Act  to  extend  the  coal-land  laws  to  the  district  of  Alaska. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  so  much  of  the  public-land 
laws  of  the  United  States  are  hereby  extended  to  the  district  of  Alaska  as  re- 
late to  coal  lands,  namely,  sections  twenty-three  hundred  and  forty-seven 
to  twenty-three  hundred  and  fifty-two,  inclusive,  of  the  Revised  Statutes. 

[Act  April  28,  1904  (33  Stat.,  525).] 

An  Act  to  amend  an  act  entitled  "An  act  to  extend  the  coal-land  laws  to  the 
district  of  Alaska,"  approved  June  sixth,  nineteen  hundred. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  any  person  or  association  of 
persons  qualified  to  make  entry  under  the  coal-land  laws  of  the  United  States, 
who  shall  have  opened  or  improved  a  coal  mine  or  coal  mines  on  any  of  the 
unsurveyed  public  lands  of  the  United  States  in  the  district  of  Alaska,  may 
locate  the  lands  upon  which  such  mine  or  mines  are  situated,  in  rectangular 
tracts  containing  forty,  eighty,  or  one  hundred  and  sixty  acres,  with  north 
and  south  boundary  lines  run  according  to  the  true  meridian,  by  marking 
the  four  corners  thereof  with  permanent  monuments,  so  that  the  boundaries 
thereof  may  be  readily  and  easily  traced.  And  all  such  locators  shall,  within 
one  year  from  the  passage  of  this  Act,  or  within  one  year  from  making  such 
location,  file  for  record  in  the  recording  district,  and  with  the  register  and  re- 
ceiver of  the  land  district  in  which  the  lands  are  located  or  situated,  a  notice 
containing  the  name  or  names  of  the  locator  or  locators,  the  date  of  the  loca- 
tion, the  description  of  the  lands  located,  and  a  reference  to  such  natural  ob- 
jects or  permanent  monuments  as  will  readily  identify  the  same. 

Sec.  2.  That  such  locator  or  locators,  or  their  assigns,  who  are  citizens  of 
the  United  States,  shall  receive  a  patent  to  the  lands  located  by  presenting, 
at  any  time  within  three  years  from  the  date  of  such  notice,  to  the  register 
and  receiver  of  the  land  district  in  which  the  lands  so  located  are  situated 
an  application  therefor,  accompanied  by  a  certified  copy  of  a  plat  of  survey 
and  field  notes  thereof,  made  by  a  United  States  deputy  surveyor  or  a  United 
States  mineral  surveyor  duly  approved  by  the  surveyor-general  for  the"  dis- 
trict of  Alaska,  and  a  payment  of  the  sum  of  ten  dollars  per  acre  for  the 
lands  applied  for;  but  no  such  application  shall  be  allowed  until  after  the 
applicant  has  caused  a  notice  of  the  presentation  thereof,  embracing  a  de- 
scription of  the  lands  to  have  been  published  in  a  newspaper  in  the  district 
of  Alaska  published  nearest  the  location  of  the  premises  for  a  period  of  sixty 


COAL   LAND    LAWS   AND   REGULATIONS.  001 

days,  and  shall  have  caused  copies  of  such  notice,  together  with  a  certified 
copy  of  the  official  plat  of  survey,  to  have  been  kept  posted  in  a  conspicuous 
place  upon  the  land  applied  for  and  in  the  land  office  for  the  district  in 
which  the  lands  are  located  for  a  like  period,  and  until  after  he  shuli  have 
furnished  proof  of  such  publication  and  posting,  and  such  other  proof  as 
is  required  by  the  coal-land  laws:  Provided,  That  nothing  herein  contained 
shall  be  so  construed  as  to  authorize  entries  to  be  made  or  title  to  be  acquir- 
ed to  the  shore  of  any  navigable  waters  within  said  district. 

Sec.  3.  That  during  such  period  of  posting  and  publication,  or  within  six 
months  thereafter,  any  person  or  association  of  persons  having  or  assert- 
ing any  adverse  interest  or  claim  to  the  tract  of  land  or  any  part  thereof 
sought  to  be  purchased  shall  file  in  the  land  office  where  such  application  is 
pending,  under  oath,  an  adverse  claim,  setting  forth  the  nature  and  extent 
thereof,  and  such  adverse  claimant  shall,  within  sixty  days  after  the  filing 
of  such  adverse  claim,  begin  an  action  to  quiet  title  in  a  court  of  competent 
jurisdiction  within  the  district  of  Alaska,  and  thereafter  no  patent  shall 
issue  for  such  claim  until  the  final  adjudication  of  the  rights  of  the  par- 
ties, and  such  patent  shall  then  be  issued  in  conformity  with  the  final  de- 
cree of  such  court  therein. 

Sec.  4.  That  all  the  provisions  of  the  coal-land  laws  of  the  United  States 
not  in  conflict  with  the  provisions  of  this  Act  shall  continue  and  be  in  full 
force  in  the  district  of  Alaska. 


RULES  AND  REGULATIONS. 

1.  Persons  or  associations  of  persons  locating  or  entering  coal  lands   in 
the  district  of  Alaska  under  the  provisions  of  the  act  of  April  28,  1904  (33 
Stat.  L.,  525),  amendatory  of  the  act  of  June  6,  1900  (31  Stat.  L.,  330),  are 
required  to  possess  the  qualifications  of  persons  or  associations  making  en- 
try under  the  general  coal-land  laws  of  the  United  States,  and  are  subject 
to  the  same  limitations. 

2.  The  lands  must  be  vacant  and  unappropriated,   and  must  contain  de- 
posits of  coal,  and  must  not  be  valuable  for  mines  of  gold,  silver,  or  copper. 
Lands  containing  lignites  are  included  under  the  term  "coal  lands." 

3.  Entry  by  an  individual  may  be  made  only  by  a  person  above  the  age 
of  21  years,  who  is  a  citizen  of  the  United  States,  and  shall  not  embrace 
more   than    160  acres.     Entry  by   an   association   of   persons   may   embrace 
320  acres,  but  each  person  composing  the  association  must  be  qualified  as 
in  the  case  of  an   individual    entryman.     A  corporation   is   held   to  be   an 
association  under  the  provisions  of  the  coal-land  law. 

4.  When  an  association  of  not  less  than  four  persons,  severally  qualified 
as  required  in  the  case  of  an  individual  entryman,  shall  have  expended  not 
less  than  $5,000  in  working  and  improving  a  mine  or  mines  of  coal  upon  the 
public  lands,  such  association  may  enter  not  exceeding  640  acres,  including 
such  mining  improvements. 

5.  But  one  entry  of  coal  lands  by  any  person  or  association  of  persons  is 
allowed  by  the  law.     No  person   who,   and  no  association   any  member  of 
which,  either  as  an  individual  or  as  a  member  of  an  association,  shall  have 
had  the  benefits  of  the  law  may  enter  or  hold  other  coal  lands  thereunder. 
The  right  so  to  enter  or  hold  is  exhausted,  whether  an  entry  embraces  in 
any  instance  the  maximum  area  allowed  by  the  law  or  less. 

6.  There  is  no  authority  under  which  a  coal  mine  upon  public  lands,  entry 
not  having  been  mado,  may  be  worked  and  operated  for  profit  and  sale  of 


602  APPENDIX    C. 

the  coal,  or  beyond  the  opening  and  improving  of  the  mine  as  a  condition 
precedent  to  the  right  to  apply  for  patent. 

7.  The  requirement  of  the  statute  with  respect  to  the  form  of  the  tract 
sought  to  be  entered  is  construed  to  mean  that  the  boundary  lines  of  each 
entry  must  be  run  in  cardinal  directions,  i.  e.,  due  north  and  south  and  east 
and  west  lines,  by  reference  to  a  true  meridian  (not  magnetic),  with  the  ex- 
ception of  meander  lines  on  meanderable  streams  and  navigable  waters  form- 
ing a  part  of  the  boundary  lines  of  a  location.     Those  meander  lines  which 
form  part  of  the  boundary  of  a  claim  will  be  run  according  to  the  directions 
in  the  Manual  of  Surveying  Instructions,  but  other  boundary  lines  will  be 
nin  in  true  east  and  west  and  north  and  south  directions,   thus  forming 
rectangles,  except  at  intersections  with  meandered  lines. 

8.  The  permanent  monuments  to  be  placed  at  each  of  the  four  corners  of 
the  tract  located  may  consist  of — 

First.  A  stone  at  least  24  inches  long,  set  12  inches  in  the  ground,  with 
a  conical  mound  of  stone  1%  feet  high,  2  feet  base,  alongside. 

Second.  A  post  at  least  3  feet  long  by  4  inches  square,  set  18  inches  in  the 
ground,  and  surrounded  by  a  substantial  mound  of  stone  or  earth. 

Third.  A  rock  in  place;  and,  whenever  possible,  the  identity  of  all  corners 
should  be  perpetuated  by  taking  courses  and  distances  to  bearing  trees,  rocks, 
or  other  objects,  permanent  objects  being  selected  for  bearings  whenever  pos- 
sible. 

9.  It  is  further  provided  by  the  first  section  of  the  act  that  within  one  year 
from  the  date  of  the  passage  of  the  act  or  within  one  year  from  making  the 
location  there  shall  be  filed  for  record  in  the  recording  district  and  with  the 
register  and  receiver  of  the  land  district  in  which  the  land  is  situated  a 
notice  containing  the  name  or  names  of  the  locator  or  locators,  the  date  of 
the  location,  the  description  of  the  lands  located,  and  a  reference  to  such 
natural  objects  or  permanent  monuments  as  will  readily  identify  the  same. 
In  other  words,  the  notice  should  contain  a  complete  description  in  every 
particular  of  the  claim  as  it  is  marked  and  monumented  upon  the  ground. 

10.  By  the  second  section  of  the  act  the  locator  or  his  assigns  is  allowed 
three  years  from  the  date  of  filing  the  notice  prescribed  in  the  first  section 
of  the  act  within  which  to  file  an  application  with  the  local  land  officers  for 
a  patent  for  the  land  claimed.    It  will  thus  be  seen  that  persons  or  associa- 
tions of  persons  claiming  coal  lands  in  that  district  at  the  date  of  the  passage 
of  the  act  have  four  years  from  location  or  from  the  date  of  the  act  within 
which  to  present  their  applications  for  patent. 

11.  Persons  or  associations  of  persons  who  fail  to  record  their  notices  with- 
in the  time  prescribed  by  the  first  section  of  the  act,  or  fail  to  file  applica- 
tion for  patent  in  the  time  prescribed  by  the  second  section,  forfeit  their  rights 
to  the  particular  tract  located. 

12.  With  the  application  for  patent  the  claimant  must  file  a  certified  copy 
of  the  plat  of  survey  and  field  notes  thereof  made  by  a  United  States  deputy 
surveyor  or  a  United   States  mineral   surveyor,  duly  approved  by  the  sur- 
veyor-general for  the  district  of  Alaska.     Under  this  clause  of  the  act  it 
will  be  allowable  for  the  claimant,  at  his  own  expense,  to  procure  the  making 
of  a  survey  by  one  of  the  officials  mentioned  without  first  making  application 
to  the  surveyor-general,  but  the  survey  when  made  is  to  be  submitted  to  and 
approved  by  the  surveyor-general  and  by  him  numbered  serially. 

13.  The  survey  must  be  made  In  strict  conformity  with  or  be  embraced 
within  the  lines  of  the  location  as  appears  from  the  record  thereof  with  the 
recorder  in  the  recording  district,  and  must  be  made  in  accordance  with  the 


COAL   LAND   LAWS   AND    REGULATIONS.  603 

regulations  relative  to  lode  and  placer  mining  claims  so  far  as  they  are  ap- 
plicable. 

14.  Upon  the  presentation  of  an  application  for  patent,  if  no  reason  appears 
for  rejecting  it,  it  will  be  received  by  the  register  and  receiver  and  the  claim- 
ant required  to  publish  a  notice  thereof  for  the  period  of  sixty  days  in   :.». 
newspaper  in  the  district  of  Alaska   published  nearest  the  location   of  the 
particular  lands,  and  to  cause  a  copy  thereof,  together  with  a  certified  copy 
of  the  official  plat  of  survey,  to  be  posted  and  remain  posted  throughout  the 
period  of  publication  in  a  conspicuous  place  upon  the  land  applied  for,  and 
the  register  will  post  a  copy  of  such  notice  and  official  plat  in  his  office  for 
the  same  period.     When  the  notice  is  published  in  a  weekly  newspaper  nine 
consecutive  insertions  are  necessary;  when  in  a  daily  newspaper,  the  notice 
must  appear  in  each  issue  for  sixty-one  consecutive  issues.     In  both  cases  the 
first  day  of  issue  must  be  excluded  in  estimating  the  period  of  sixty  days. 

15.  The  notice  so  published  must  embrace  all  the  data  given  in  the  notice 
posted  upon  the  claim  and  in  the  local  land  office.     In  addition  to  such  data. 
the  published  notice  must  further  indicate  the  locus  of  the  claim  by  giving 
the  connecting  line,  as  shown  by  the  field  notes  and  plat,  between  a  corner 
of  the  claim  and  a  United  States  mineral  monument  or  a  corner  of  the  public 
survey,  if  there  is  one,  and  fix  the  boundaries  of  the  claim  by  courses  and  dis- 
tances. 

The  publication  in  the  newspaper  and  the  posting  upon  the  land  and  in 
the  local  land  office  must  cover  the  same  period  of  time. 

16.  Upon  the  expiration  of  the  sixty-day  period  prescribed   the   claimant 
may  file  in  the  local  land  office  a  sworn  statement  from  the  office  of  publica- 
tion, to  which  shall  be  attached  a  copy  of  the  notice  published,  to  the  effect 
that  the  notice  was  published  for  the  statutory  period,  giving  the  first  and 
last  day  of  such  publication,  and  his  own  affidavit  showing  that  the  plat  and 
notice  aforesaid  remained  conspicuously  posted  upon  the  claim  sought  to  be 
patented  during  the  sixty-day  period  of  publication,  giving  the  dates.     The 
register  will  also  file  with  the  record  a  certificate  showing  that  the  notice 
and  plat  were  posted  in  his  office  for  the  full  period  of  sixty  days,  such  cer- 
tificate to  state  distinctly  when  such  posting  was  done  and  how  long  con- 
tinued. 

Not  earlier  than  six  months  after  the  expiration  of  the  period  of  publica- 
tion, if  no  objections  are  interposed  or  adverse  claim  filed,  entry  may  be  al- 
lowed upon  payment  of  the  price  per  acre  specified  by  the  act,  which  is  $10 
per  acre  in  all  cases. 

17.  The  proviso  to  the  second  section  of  the  act  is  as  follows: 

That  nothing  herein  contained  shall  be  so  construed  as  to  authorize  entries 
to  be  made  or  title  to  be  acquired  to  the  shore  of  any  navigable  waters  with- 
in said  district. 

The  term  "shore"  is  defined  to  mean  the  land  lying  between  high  and  low 
water  marks  of  any  navigable  waters  within  said  district. 

18.  Section  3  provides  for  the  assertion  by  any  person  or  association  of  per- 
sons of  an  adverse  claim,  and  requires  that  such  adverse  claim  shall  be  filed 

1  during  the  period  of  posting  and  publication  or  within  six  months  thereafter ; 
that  it  shall  be  under  oath,  and  set  forth  the  nature  and  extent  thereof. 

19.  An  adverse  claim  may  be  verified  by  the  oath  of  the  adverse  claimant 
or  by  the  oath  of  any  duly  authorized  agent  or  attorney  in  fact  of  the  ad- 
verse claimant  cognizant  of  the  facts  stated,  and  when  verified  by  such  agent 
or  attorney  in  fact  he  must  distinctly  swear  that  he  is  such  agent  or  attorney 
in  fact  and  accompany  his  affidavit  by  proof  thereof.     The  adverse  claimant 


'604  APPENDIX   C. 

should  set  forth  fully  the  nature  and  extent  of  the  interference  or  conflict 
by  filing  with  his  adverse  claim  a  plat  showing  his  entire  claim  and  its 
situation  or  position  with  relation  to  the  one  against  which  he  claims;  wheth- 
er he  claims  as  a  purchaser  for  valuable  consideration  or  as  a  locator;  if  the 
former,  a  certified  copy  of  the  original  location,  the  original  conveyance  or 
duly  certified  copy  thereof,  or  an  abstract  of  title  from  the  office  of  the  proper 
recorder  should  be  furnished,  or,  if  the  transaction  was  a  merely  verbal  one, 
he  will  narrate  the  circumstances  attending  the  purchase,  the  date  thereof, 
and  amount  paid,  which  facts  will  be  supported  by  the  affidavits  of  one  or 
more  witnesses,  if  any  were  present  at  the  time;  and  if  he  claims  as  locator, 
he  must  file  a  duly  certified  copy  of  the  location  notice  from  the  office  of  the 
proper  recorder  and  his  affidavit  of  continued  ownership. 

20.  Upon  the  filing  of  such  adverse  claim  within  the  sixty  days  period  of 
posting  and  publication,  or  within  six  months  thereafter,  the  party  who  files 
the  adverse  claim  shall,  under  the  act,  within  sixty  days  after  the  filing  of 
such  adverse  claim,  begin  an  action  to  quiet  title  in  a  court  of  competent 
jurisdiction  within  the  district  of  Alaska. 

21.  All  papers  filed  should  have  indorsed  upon  them  the  precise  date  of 
filing:  and  upon  the  filing  of  an  adverse  claim  within  the  time  prescribed  by 
the  statute  all  proceedings  on  the  application  for  patent  will  be  suspended, 
with  the  exception  of  the  completion  of  the  publication  and  posting  of  notice 
and  plat  and  filing  the  necessary  proof  thereof,  until   final   adjudication  of 
the  rights  of  the  parties.     In  cases  of  final  judgment  rendered  the  party  en- 
titled under  the  decree  must,  before  he  is  allowed  to  make  entry,  file  a  cer- 
tified copy  thereof. 

22.  Where  such  suit  has  been  dismissed  a  certificate  of  the  clerk  of  the 
court  to  that  effect  or  a  certified  copy  of  the  order  of  dismissal  will  be  suffi- 
cient.   Where  no  suit  has  been  commenced  against  the  application  for  patent 
within  the  statutory  period,  a  certificate  to  that  effect  by  the  clerk  of  the  Ter- 
ritorial court  having  jurisdiction  will  be  required. 

23.  In  connection  with  the  foregoing,  it  is  to  be  borne  in  mind  that  by  sec- 
tion 4  of  the  act  it  is  declared: 

That  all  the  provisions  of  the  coal-land  laws  of  the  United  States  not  in 
conflict  with  the  provisions  of  this  act  shall  continue  and  be  in  full  force  In 
the  district  of  Alaska. 

24.  An  assignment  to  a  qualified  person  of  a  preference  right  of  entry  un- 
der the  act  of  April  28,   1904,   will   be  recognized  when   properly  executed. 
Proof  and  payment  by  the  assignee  must  be  made,  however,  in  the  same  man- 
ner and  within  the  same  time  as  though  there  had  been  no  assignment. 

25.  The  following  forms  for  notice  of  location  and  application  for  patent 
should  be  used: 

NOTICE  OF  LOCATION. 

I, ,  of ,  having  on  the day  of ,  19. .,  opened  and 

improved  a  coal  mine  on  the  following-described  tract  (here  describe  the  lands 
toy  metes  and  bounds  in  rectangular  form  with  north  and  south  boundary  lines 
run  according  to  the  true  meridian,  and  a  reference  to  such  natural  or  per- 
manent objects  as  will  readily  identify  the  same),  do  hereby  locate  the  same 
as  provided  by  the  Alaska  coal-land  act  of  April  28,  1904  (33  Stats.,  525); 
and  I  do  solemnly  swear  that  I  am  a  citizen  of  the  United  States  (or  have 
declared  my  intention  to  become  a  citizen  of  the  United  States) ;  that  I,  am 
over  the  age  of  21  years;  that  I  have  never  either  as  an  individual  or  as  a 
member  of  an  association  held,  except ,  or  purchased  any  coal  lands  of 


COAL    LAND   LAWS   AND    REGULATIONS.  GUo 

the  United  States;  that  I  have  remained  in  actual  possession  of  said  land 

continuously  since  the day  of ,  19..;  that  I  have  expended  in 

labor  and  improvements  on  said  mine  the  sura  of   dollars,  the  labor 

and  improvements  being  as  follows  (here  describe  the  nature  and  character 
of  such  improvements) ;  and  I  do  furthermore  solemnly  swear  that  I  am  well 
acquainted  with  the  character  of  said  described  lands  and  with  each  and  every 
portion  thereof;  that  my  knowledge  of  said  lands  is  such  as  to  enable  me  to 
testify  understandingly  with  regard  thereto;  that  there  is  not,  to  my  knowl- 
edge, within  the  limits  thereof  any  valuable  vein  or  lode  of  quartz  or  other 
rock  in  place  bearing  gold,  silver,  copper,  or  other  valuable  minerals,  and  that 
there  is  not  within  the  limits  of  said  land,  to  my  knowledge,  any  valuable  de- 
posits of  gold,  silver,  or  copper  or  other  minerals.  So  help  me  God. 


Dated ,19... 

(Jurat.) 

APPLICATION  FOR  PATENT. 

I,  ,  claiming  under  the  provisions  of  the  act  of  April  28,  1904  (33 

Stats.,  525),  amendatory  of  the  act  of  June  6,  1900  (31  Stats.,  658),  extend! rg 
the  coal-land  laws  to  the  district  of  Alaska,  do  hereby  apply  to  purchase  the 
lands  described  in  the  accompanying  field  notes  and  plat  and  subject  to  sale 

at  the  district  land  office  at ,  Alaska;  and  do  solemnly  swear  that  my 

title  to  said  tract  is  as  follows:  ,  as  will  more  fully  appear  by  the  cer- 
tified copy  of  location  notice  and  abstract  of  title  filed  herewith ;  that  I  am 
above  the  age  of  21  years,  and  a  citizen  of  the  United  States ;  that  I  have  not 

hitherto  held,  except  ,  or  purchased,  either  as  an  individual  or  as  a 

member  of  an  association,  any  coal  lands  under  the  provisions  of  the  coal- 
land  laws;  that  I  have  expended  in  developing  coal  mines  on  said  tract,  in 
labor  and  improvements,  the  sum  of  dollars,  the  nature  of  said  im- 
provements being  as  follows:  ;  that  I  am  now  in  the  actual  posses- 
sion of  said  mines  and  make  the  entry  in  good  faith  for  my  own  benefit,  and 
not,  directly  or  indirectly,  in  whole  or  in  part,  in  behalf  of  any  person  or 
persons  whomsoever;  and  I  do  furthermore  swear  that  I  am  well  acquainted 
with  the  character  of  said  described  land,  and  with  each  and  every  portion 
thereof;  that  my  knowledge  of  said  land  is  such  as  to  enable  me  to  testify 
understandingly  with  regard  thereto ;  that  said  land  contains  deposits  of  coal ; 
that  there  is  not,  to  my  knowledge,  within  the  limits  thereof  any  valuable 
vein  or  lode  of  quartz  or  other  rock  in  place  bearing  gold,  silver,  copper,  or 
other  valuable  minerals,  and  that  there  is  not  within  the  limits  of  said  land, 
to  my  knowledge,  any  valuable  deposits  of  gold,  silver,  copper,  or  other  min- 
erals. So  help  me  God.  

(Jurat.) 

26.  The  notice  of  location  and  the  application  for  patent,   the  forms  of 
which  are  given  above,  may  be  sworn  to  by  the  claimant  before  any  officer 
authorized  by  law  to  administer  oaths,  but  the  authority  of  said  officer  must 
be  properly  shown. 

27.  Any  party  duly  qualified  under  the  law,  after  swearing  to  his  notice  of 
location  or  application  for  patent,  may,  by  a  sufficient  power  of  attorney  duly 
executed  under  the  laws  of  the  state  or  territory  in  which  such  party  may  be 
then  residing,  empower  an  agent  to  file  with  the  register  of  the  proper  land 
office  the  notice  of  location  or  application  for  patent,  and  also  authorize  him 
to  make  payment  for  and  entry  of  the  lands  in  the  name  of  such  qualified 
party:  and  when  such  power  of  attorney  shall  have  been  filed  in  the  local 


606  APPENDIX   C. 

land  office  such  agent  may  act  thereunder  as  indicated,  but  no  person  will 
be  permitted  to  act  as  such  agent  fpr  more  than  four  applicants. 

28.  Where  a  claimant  shows  by  affidavit  that  he  is  not  personally  acquaint- 
ed with  the  character  of  the  land,  any  qualified  person  may  make  the  re- 
quired affidavit  as  to  its  character ;  but  whether  this  affidavit  is  made  by 
the  claimant  or  by  another  it  must  be  corroborated  by  the  affidavits  of  two 
disinterested  and  credible  witnesses  having  personal  knowledge  of  the  facts. 

1:9.  The  "Rules  of  Practice  in  Cases  before  the  United  States  District  Land 
Offices,  the  General  Land  Office,  and  the  Department  of  the  Interior,"  will, 
as  far  as  applicable,  govern  all  cases  and  proceedings  arising  under  the  stat- 
utes providing  for  the  sale  of  coal  lands. 

30.  Local  officers  will  report  at  the  close  of  each  month  as  "sales  of  coal 
lands"  all  filings  and  entries  in  separate  abstracts,  commencing  with  number 
one  and  thereafter  proceeding  consecutively  in  the  order  of  their  reception. 

Where  a  series  of  numbers  has  already  been  commenced  by  sale  of  coal 
lands,  they  will  continue  the  same  without  change. 

R.  A.  Ballinger,  Commissioner. 

Department  of  the  Interior,  April  12,  1907 
Approved. 

James  Rudolph  Garfield,  Secretary. 

Department  of  the  Interior,  General  Land  Office, 

Washington,  D.  C.,  June  27,  1908. 
Registers  and  Receivers,  United  States  Land  Offices,  Alaska. 

Sirs:  The  instructions  of  the  General  Land  Office,  dated  March  3,  1908, 
relative  to  the  time  within  which  applications  to  purchase  coal  lands  in 
Alaska  under  the  act  of  April  28,  1904  [B3  Stat,  525],  must  be  perfected,  are 
amended  to  read  as  follows : 

Your  attention  is  called  to  the  fact  that  the  coal-land  law  of  April  28,  1904 
[33  Stat.,  525],  provides  that  locators  or  their  assigns  may,  at  any  time  within 
three  years  after  filing  the  notice  prescribed  by  the  first  section  of  the  act, 
make  application  for  patent  for  the  land  claimed. 

This  does  not  mean  that  if  the  application  is  filed  at  an  earlier  time  than 
that  allowed,  the  claimant  may  defer  payment  for  his  claim  and  making  en- 
try for  a  period  of  time  which  added  to  the  time  between  filing  the  location 
notice  and  submitting  the  application  for  patent,  will  equal  three  years. 

When  the  claimant  files  his  application  for  patent  he  waives  the  un ex- 
pired portion  of  the  three  years  fixed  by  the  statute  and  must,  thereafter, 
diligently  proceed  to  make  publication  and  submit  the  proofs  prescribed  by 
the  statute  and  the  regulations. 

Paragraph  16  of  the  regulations  of  April  12,  1907  (35  L.  D.  673),  provides 
that  payment  and  entry  may  be  made  not  earlier  than  six  months  after  the 
expiration  of  the  period  of  publication.  The  law  does  not  contemplate  that 
this  time  be  extended  an  unreasonable  period  at  the  option  of  the  claimant, 
but  that  after  the  filing  of  the  application,  the  case  proceed  regularly  to  entry. 
Accordingly,  should  the  specified  proofs  and  purchase  price  be  not  furnished 
and  tendered  within  six  months  from  the  expiration  of  the  six  months  within 
which  adverse  claims  may  be  filed,  or  within  six  months  after  the  final  termi- 
nation of  adverse  proceedings  instituted  under  section  3  of  the  act,  you  will 
reject  the  application  subject  to  appeal :  '  Provided,  That  the  period  of  six 
months  herein  fixed  within  which  to  perfect  entry  shall  be  allowed  in  case 
of  pending  applications  which  have  not  been  perfected  within  the  ninety  days 


COAL   LAND   LAWS   AND    REGULATIONS.  607 

specified  by  the  instructions  of  March  3,  1908,  the  time  to  run  from  date 
hereof. 

This  is  not  intended  in  any  way  to  modify  the  circular  instructions  of  May 
16,  1907,  copy  inclosed  herewith. 

Very  respectfully,  S.  V.  Proudfit,  Acting  Commissioner. 

Approved  June  27,  1908. 

Frank  Pierce,  Acting  Secretary. 

Department  of  the  Interior,  General  Land  Office, 

Washington,  D.  C.,  July  11,  1908. 

Registers  and  Receivers,  United  States  Land  Offices,  and  United  States  Sur- 
veyor-General, District  of  Alaska. 

Gentlemen:  Herewith  is  copy  of  act  of  Congress  approved  May  28,  1908, 
Public  No.  151,  relating  to  existing  unpatented  coal  claims  in  the  district  of 
Alaska. 

CONSOLIDATION  OP  CLAIMS,  MAXIMUM  AREA. 

The  said  act  provides  a  method  whereby  qualified  persons,  their  heirs  or 
assigns,  who  initiated  coal  claims  in  Alaska  prior  to  November  12,  1906,  may 
consolidate  thc4r  claims  through  the  means  of  associations  or  corporations' 
which  may  perfect  entry  and  acquire  title  to  contiguous  locations,  such  con- 
solidated claims  not  to  exceed  2,560  acres  of  contiguous  lands  nor  to  exceed 
in  length  twice  the  width  of  the  tract  thus  consolidated  and  applied  for. 


QUALIFICATIONS  OF  APPLICANTS   FOR  CONSOLIDATED  CLAIM. 

When  application  is  made  by  an  association  of  persons,  each  member  there- 
of must  be  shown  to  be  qualified  to  make  entry  under  the  coal-land  laws  ap- 
plicable to  Alaska,  and  to  be  the  owner,  by  location,  inheritance,  or  purchase, 
of  an  undivided  interest  in  the  consolidated  claim.  Proof  of  the  qualifications 
of  the  applicants  may  consist  of  their  own  affidavits.  The  application  for  pat- 
ent may  be  executed  and  filed  by  the  duly  authorized  agent  of  the  members 
of  the  association. 

A  corporation  applying  to  consolidate  its  claims  must  show  at  date  of  ap- 
plication that  not  less  than  75  per  cent,  of  its  stock  is  held  by  persons  quali- 
fied to  enter  coal  lands  in  Alaska,  and  to  this  end  each  such  application  must 
be  accompanied  by  a  list  of  the  stockholders,  showing  their  respective  hold- 
ings of  stock  in  the  corporation,  and  the  personal  affidavits  of  those  holding 
such  75  per  cent,  of  the  capital  stock,  showing  their  qualifications  under  the 
law.  Applications  by  corporations  must  be  signed  by  the  president  and  sec- 
retary and  attested  by  the  corporate  seal.  All  applications  may  be  upon  Form 
4-367.  modified  to  suit  conditions. 


PENDING  ENTRIES. 

Claims  embraced  In  unpatented  entries,  if  the  entrymen  shall  so  elect,  may 
be  consolidated  into  a  single  entry  under  this  act,  upon  presentation  of  a  prop- 
er application  therefor,  within  twelve  months  from  date  hereof.  In  the  event 
of  such  consolidation,  no  further  payment,  publication  of  notice,  nor  any  new 
or  additional  survey  of  the  claims  embraced  in  the  consolidated  entry  will  be 
required ;  but  the  application  must  be  accompanied  by  a  plat  of  the  claims  as 


608  APPENDIX   C. 

consolidated,  by  proof  of  the  qualifications  of  the  applicants,  and  by  evidence- 
of  the  assignment  of  the  claims  to  the  applicants. 

ASSIGNMENTS. 

Assignments  to  individuals  or  corporations  under  the  provisions  of  the  act 
of  May  28,  1908,  must  be  executed  in  accordance  with  local  requirements,  and 
all  applications  be  accompanied  by  abstracts  of  title  properly  certified. 

SURVEYS. 

Where  locations  already  surveyed  are  sought  to  be  consolidated,  the  ap- 
plication must  be  accompanied  by  a  plat  showing  the  separate  locations  in- 
cluded in  the  consolidation  and  their  relation  to  each  other.  One  entry  may 
then  be  made  for  the  consolidated  claim.  Where  unsurveyed  claims  are  con- 
solidated, the  survey  may  describe  the  exterior  limits  of  the  consolidated 
claim,  as  in  the  case  of  the  survey  of  one  location,  but  the  field  notes  of 
survey  must  be  accompanied  by  duly  certified  copies  of  the  location  notices 
of  the  included  claims,  and  must  show  that  the  survey  is  made  substantially 
in  accordance  with  the  aggregate  locations.  Consolidated  claims  need  not  be 
surveyed  in  perfect  squares  or  parallelograms,  but  the  length  of  the  consoli- 
dated claim  must  not  exceed  twice  the  width,  length  and  width  to  be  measur- 
ed in  straight  lines. 

TIME  WITHIN  WHICH  APPLICATION  TO  ENTER  MUST  BE  MADE. 

Application  for  patent  for  consolidated  claims  may  be  accepted  if  filed 
within  three  years  from  date  of  the  latest  recorded  notice  of  location  of  the 
included  claims,  exclusive  of  the  period  of  suspension  between  November  12, 
1906,  and  August  1,  1907  (Circular,  May  1G,  1907,  35  L.  D.,  572).  In  case  of 
consolidation  of  claims,  including  both  claims  for  which  no  application  for 
patent  has  been  filed  and  claims  for  which  applications  have  been  made,  the 
application  under  the  provision  of  this  act  must  be  filed  within  three  years 
from  date  of  the  latest  recorded  notice  of  location  of  the  included  claims,  ex- 
clusive of  the  period  of  suspension  hereinbefore  mentioned.  In  case  of  con- 
solidation of  claims  for  all  of  which  applications  for  patent  have  already  been 
filed,  final  proof,  payment,  and  entry  must  be  made  within  six  months  after 
the  expiration  of  the  period  of  six  months  prescribed  by  section  3  of  the  act 
of  April  28,  1904,  for  the  filing  of  adverse  claims  has  elapsed  in  case  of  all 
the  included  applications  or  within  six  months  after  the  final  adjudication 
of  the  rights  of  the  parties  in  adverse  suits  instituted  with  respect  to  any  or 
all  of  such  included  applications :  Provided  that  in  those  cases  wherein  the 
time  here  specified  has  expired  applications  to  consolidate  must  be  filed  within 
six  months  from  date  hereof. 

SECTION  3  OP  ACT. 

Inasmuch  as  section  3  deals  exclusively  with  such  coal  lands  or  deposits  as 
shall  have  been  purchased  under  this  act,  its  interpretation  seems  more  prop- 
erly to  fall  within  the  province  of  the  Department  of  Justice,  and  it  is  deem- 
ed inadvisable  for  this  Department  to  attempt  at  this  time  to  define  its  pro- 
visions. 


COAL   LAND   LAWS  AND   REGULATIONS.  CU9 


ACT  APRIL  28,  1904  (33  STAT.,  525). 

So  far  as  not  In  conflict  with  or  superseded  by  the  act  of  May  28,  1008,  the 
act  of  April  28.  1904,  will  govern  the  survey,  application,  and  entry  of  the  coal 
claims  described  in  these  instructions. 

PATENTS. 

Patents  Issued  under  the  provisions  of  the  act  of  May  28,  1908,  will  contain 
recitals  of  the  terms  and  conditions  imposed  by  sections  2  and  3  of  the  act. 

Very  respectfully,  S.  V.  Proudfit,  Acting  Commissioner. 

Approved : 

Frank  Pierce.  First  Assistant  Secretary. 

[Act  May  28,  1908,  c.  211  (35  Stat.  424).] 

An  Act  to  encourage  the  development  of  coal  deposits  in  the  Territory  of 
Alaska. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  all  persons,  their  heirs  or  as- 
signs, who  have  in  good  faith  personally  or  by  an  attorney  in  fact  made  loca- 
tions of  coal  land  in  the  Territory  of  Alaska  in  their  own  interest,  prior  to 
November  twelfth,  nineteen  hundred  and  six,  or  in  accordance  with  circular 
of  instructions  issued  by  the  Secretary  of  the  Interior  May  sixteenth,  nineteen 
hundred  and  seven,  may  consolidate  their  said  claims  or  locations  by  includ- 
ing in  a  single  claim,  location,  or  purchase  not  to  exceed  two  thousand  five 
hundred  and  sixty  acres  of  contiguous  lands,  not  exceeding  in  length  twice 
the  width  of  the  tract  thus  consolidated,  and  for  this  purpose  such  persons, 
their  heirs,  or  assigns,  may  form  associations  or  corporations  who  may  per- 
fect entry  of  and  acquire  title  to  such  lands  in  accordance  with  the  other  pro- 
visions of  law  under  which  said  locations  were  originally  made :  Provided, 
That  no  corporation  shall  be  permitted  to  consolidate  its  claims  under  this 
act  unless  seventy-five  per  centum  of  its  stock  shall  be  held  by  persons  quali- 
fied to  enter  coal  lands  in  Alaska. 

Sec.  2.  That  the  United  States  shall,  at  all  times,  have  the  preference  right 
to  purchase  so  much  of  the  product  of  any  mine  or  mines  opened  upon  the 
lands  sold  under  the  provisions  of  this  act  as  may  be  necessary  for  the  use 
of  the  Army  and  Navy,  and  at  such  reasonable  and  remunerative  price  as  may 
be  fixed  by  the  President;  but  the  producers  of  any  coal  so  purchased  who 
may  be  dissatisfied  with  the  price  thus  fixed  shall  have  the  right  to  prosecute 
suits  against  the  United  States  in  the  Court  of  Claims  for  the  recovery  of  any 
additional  sum  or  sums  they  may  claim  as  justly  due  upon  such  purchase. 

Sec.  3.  That  if  any  of  the  lands  or  deposits  purchased  under  the  provisions 
of  this  act  shall  be  owned,  leased,  trusteed,  possessed,  or  controlled  by  any 
device  permanently,  temporarily,  directly,  indirectly,  tacitly,  or  in  any  man- 
ner whatsoever  so  that  they  form  part  of,  or  in  any  way  effect  any  combination, 
or  are  in  anywise  controlled  by  any  combination  in  the  form  of  ah  unlawful 
trust,  or  form  the  subject  of  any  contract  or  conspiracy  in  restraint  of  trade 
in  the  mining  or  selling  of  coal,  or  of  any  holding  of  such  lands  by  any  in- 
dividual, partnership,  association,  corporation,  mortgage,  stock  ownership,  or 
control, 'in  excess  of  two  thousand  five  hundred  and  sixty  acres  in  the  district 
COST.MIN.L.— 39 


610  APPENDIX    C. 

of  Alaska,  the  title  thereto  shall  be  forfeited  to  the  United  States  by  pro- 
ceedings instituted  by  the  Attorney-General  of  the  United  States  in  the  courts 
for  that  purpose. 

Sec.  4.  That  every  patent  issued  under  this  act  shall  expressly  recite  the 
terms  and  conditions  prescribed  in  sections  two  and  three  hereof. 


INSTRUCTIONS. 

Department  of  the  Interior,  General  Land  Office, 

Washington,  D.  C.,  April  24,  1907. 
Registers  and  Receivers,  United  States  Land  Offices. 

Sirs:  The  following  instructions  are  issued  for  your  guidance: 

COAL  LANDS. 

1.  Lands  heretofore  withdrawn  from  coal  entry  and  not  released  from  such 
withdrawals  shall  be  entered  on  the  tract  books  as  "coal  lands." 

2.  No  entries  of  lands  so  noted  shall  be  permitted  under  the  coal-land  laws 
until  the  maps  and  lists,  as  hereinafter  mentioned,  are  filed  in  the  local  land 
office.     Provided,  however,  such  lands  are  now  open  for  location  and  entry 
under  the  general  mining  laws  for  valuable  deposits  of  gold,  silver,  or  copper, 
notwithstanding  the  fact  that  they  may  also  contain  workable  deposits  of 
coal.     Lands  noted  on  the  tract  books  as  coal  lands  may,  if  nonmineral  in 
character,  be  entered  under  the  appropriate  land  laws,  but  no  final  proof 
or  entry  will  be  allowed  until  receipt  of  a  report  from  a  field  officer,  in  ac- 
cordance with  instructions  from  the  Commissioner  of  the  General  Land  Of- 
fice, unless  said  lands  have  been  restored  to  entry  as  hereinafter  provided. 

3.  You  will  be  furnished,  from  time  to  time,  township  maps  showing  the 
coal  lands  in  the  respective  townships,  containing  thereon  the  price  at  which 
such  coal  lands  will  be  sold.     Lands  not  enumerated  and  priced  as  "coal 
lands"  in  any  such  township  map  shall  be  treated  as  restored  to  entry  under 
the  general  land  laws,  and  you  will  so  note  on  your  tract  books.    Upon  the  fil- 
ing of  such  maps,  coal  claims  may  be  received,  as  provided  by  the  regulations 
of  April  12,  1907,  within  the  townships  covered  thereby. 

All  coal  filings  made  within  sixty  days  prior  to  withdrawals  from  coal  en- 
try may  be  completed  within  the  time  prescribed  by  the  statutes,  less  the  time 
from  date  of  such  withdrawals  to  date  of  special  written  notice  of  filing  of 
the  maps  and  lists  in  the  local  office,  as  herein  provided,  such  notice  to  be 
given  by  you  to  all  persons  entitled  thereto.  Also  persons  who  had,  within 
sixty  days  prior  to  such  withdrawal,  opened  and  improved  a  coal  mine  upon 
public  surveyed  lands  may  file  within  the  statutory  period  allowed,  less  that 
covered  by  the  withdrawal.  Claims  upon  unsurveyed  lands  classed  as  coal 
lands  must  be  presented  for  filing  within  sixty  days  after  the  filing  of  the 
plat  of  survey,  if  the  maps  and  plats  are  filed  before  the  survey,  or,  after  the 
lands  have  been  surveyed,  within  sixty  days  after  the  filing  of  the  maps  and 
lists  herein  required  in  the  local  office,  if  the  maps  and  lists  are  filed  after 
the  survey.  However,  in  cases  of  valid  and  existent  rights,  the  price  per 
acre  to  be  paid  will  be  the  minimum  price  fixed  by  statute. 


COAL   LAND   LAWS   AND   REGULATIONS.  611 


LANDS  NOT  "COAL  LANDS." 

4.  Lands  not  listed  as  "coal  lands,"  as  hereinbefore  mentioned,  may  be 
entered  under  any  of  the  public  land  laws  applicable  to  the  particular  tract. 
If  any  of  these  lands  are  found  to  contain  workable  deposits  of  coal  they 
may  be  entered  under  the  provisions  of  the  coal  land  circular  of  April  12,  1907, 
at  the  minimum  price  fixed  by  the  statute. 


ACTION  REQUIRED  BY  SPECIAL  AGENTS. 

5.  In  all  cases  of  application  to  make  final  proof,  final  entry,  or  to  purchase 
public  lands  under  any  public  land  law,  the  Register  and  Receiver  will  at  once 
forward  a   copy  thereof  to  the  Chief  of  Field  Division  of   Special   Agents. 
Such  copy  will  be  indorsed  "coal  lands"  or  "not  coal  lands,"  as  the  case  may 
be.    Where  the  land  is  in  a  National  Forest  or  other  reservation,  a  second  copy 
will  be  forwarded  to  the  officer  in  charge  thereof. 

6.  Registers  and  Receivers  will  not  issue  final  certificate  or  its  equivalent 
in  any  case  until  the  copy  of  notice  mentioned  in  paragraph  5  is  returned  with 
the  Chief  of  Field  Division's  indorsement  thereon.     The  Chief  of  Field  Divi- 
sion will  in  every  case  return  the  copy  of  notice  prior  to  date  for  final  proof 
or  purchase. 

7.  When  the  copy  of  notice  is  returned  with  an  indorsement  not  protesting 
the  validity  of  the  entry,  the  Register  and  Receiver  will  act  upon  the  merits 
of  the  proof  as  submitted.     WThere  the  returned  indorsement  of  Chief   of 
Field  Division  or  other  officer  protests  the  validity  of  the  entry,  the  Register 
and  Receiver  will  forward  all  papers  to  this  office  without  action. 

8.  The  Chief  of  Field  Division,  on  receipt  of  such  copy  of  notice,  will  make 
a  case  thereof  on  his  docket,  and  also  make  a  field  examination  in  the  fol- 
lowing cases: 

(a)  Cases  wherein  he  has  reason  to  believe  a  particular  entry  is  fraudulent. 

(b)  Cases  wherein  the  Register  and  Receiver  have  reason  to  believe  a  par- 
ticular entry  is  fraudulent  and  have  indorsed  that  fact  upon  the  copy  of  no- 
tice. 

(c)  Cases  other  than  coal  entries  in  lands  classed  as  coal  lands. 

Chiefs  of  Field  Division  will  exert  every  effort  to  make  the  field  examina- 
tion prior  to  date  for  final  proof. 

9.  In  cases  not  within  paragraph  8  the  Chief  of  Field  Division  will  return 
such  copy  of  notice  indorsed  over  his  signature  "no  protest  against  validity 
of  this  entry."     In  cases  under  paragraph  8  he  will  return  to  the  Register 
and  Receiver  the  copy  of  notice  indorsed  "protest  against  the  validity  of  this 
entry  is  filed  in  this  office."    If  investigation  is  completed  before  date  for  final 
proof,  he  will  so  notify  the  Register  and  Receiver,  by  letter ;  and  if  investi- 
gation is  unfavorable  to  entry,  he  will  submit  his  report  to  this  office. 

The  circulars  of  January  21,  1907,  March  15,  1907,  and  all  parts  of  the  cir- 
cular of  December  7,  1905,  in  conflict  herewith,  and  all  other  regulations  and 
circulars  in  conflict  herewith  are  hereby  revoked. 

Very  respectfully,  R,  A.  Ballinger,  Commissioner. 

Approved  April  24.  1907. 

James  Rudolph  Garfield,  Secretary. 


612  APPENDIX   C. 


Department  of  the  Interior,  General  Land  Office, 

Washington,  D.  C.,  May  16,  1907. 
Register  and  Receiver,  Juneau,  Alaska. 

Gentlemen :    The  following  instructions  are  issued  for  your  guidance : 

1.  Under  the  order  of  November  12,  1906,  withdrawing  lands  in  Alaska  from 
entry,   location,  or   filing  under  the  coal-land  laws,  and  subsequent  modifi- 
cations of  said  order,  no  lands  in  Alaska  known  to  contain  workable  deposits 
of  coal  can  be  entered,  located,  or  filed  upon  while  such  orders  remain  in  force, 
except  as  hereinafter  provided. 

2.  All  qualified  persons  or  associations  of  qualified  persons  who  had  within 
one  year  prior  to  November  12,  1906,  in  good  faith  made  legal  and  valid  loca- 
tions under  the  act  of  April  28,  1904,  may  file  notices  of  such  locations  in  the 
manner  and  within  the  time  prescribed  by  said  act,  if  such  notices  have  not 
already  been  filed  and  such  locations  have  not  been  abandoned  or  forfeited ; 
and  they  or  any  other  person  or  persons  to  whom  they  may  lawfully  assign 
their  rights  after  such  notices  have  been  filed  may  thereafter  proceed  to  make 
entry  and  obtain  patent  within  the  time  and  in  the  manner  prescribed  by  law. 

3.  In  computing  the  time  within  which  notices  of  location  may  be  filed  un- 
der the  preceding  paragraph,   the  time  intervening  between   November   12, 
1906,  and  August  1,  1907,  will  not  be  taken  into  consideration  or  counted,  but 
such  notices  may  be  filed  within  one  year  from  the  date  of  location,  exclusive 
of  such  time. 

4.  All  qualified  persons  or  associations  of  qualified  persons  who  may  have 
in  good  faith  legally  filed  valid  notices  of  location  under  the  act  of  April  28, 
1904,  prior  to  November  12,   1906,  and  the  bona  fide  qualified  assignees  of 
such  persons,  may  make  entry  and  obtain  patent  under  such  notices  within 
the  time  and  in  the  manner  prescribed  by  statute  if  they  have  not  abandoned 
their  right  to  do  so. 

5.  In  computing  the  time  within  which  persons  or  associations  of  persons 
mentioned  in  the  preceding  paragraph  may  apply  for  patent,  the  time  inter- 
vening between  November  12,  1906,  and  the  day  ,on  which  they  receive  the 
written  notices  given  by  you  as  hereinafter  required  will  not  be  considered  or 
counted,  and  such  applications  may  be  made  at  any  time  within  three  years 
from  the  date  on  which  such  notices  of  location  were  filed,  exclusive  of  such 
time. 

6.  You  are  directed  to  at  once  notify  all  persons  or  associations  of  persons 
who  have  filed  notices  of  location  in  your  office,  including  those  who  have 
pending  applications  for  patent,  and  all  persons  or  associations  of  persons 
holding  as  assignees  under  such  locations  who  have  notified  you  of  such  as- 
signments, of  their  right  to  proceed  in  the  manner  herein  prescribed  and  au- 
thorized, and  to  furnish  them  with  a  copy  of  these  instructions.    These  notices 
must  be  served  either  personally  or  by  registered  mail,  and  you  should  care- 
fully preserve  with  the  record  in  each  case  the  registry  return  receipt  or  oth* 
er  evidence  of  such  notice. 

7.  In  all  cases  where  you  publish  notice  of  applications  for  entry  or  patent 
under  'the  coal-land  laws,  or  under  any  other  law,  you  will  at  once  mail  a 
copy  of  said  notice  to  a  special  agent  assigned  to  duty  in  Alaska.     Should 
said  agent  thereafter  file  in  your  office  a  protest  against  the  validity  of  the 
location  or  claim  embraced  In  any  such  application  you  will  defer  action  upon 


COAL  LAND  LAW?  AND  REGULATIONS.  G13 

such   application   until   said  protest  is  withdrawn   or  appropriate  action   is 
taken  thereon. 

Very  respectfully,  R.  A.  Balliuger,  Commissioner. 

Approved  May  16,  1907. 

James  Rudolph  Garfleld,  Secretary. 


INSTRUCTIONS. 

Department  of  the  Interior,  General  Land  Office, 

Washington,  D.  C.,  May  20,  1907. 
Registers  and  Receivers,  United  States  Land  Offices. 

Sirs:     The  following  instructions  are  issued  for  your  further  guidance  in 
cases  arising  under  the  coal-land  laws: 

1.  As  soon  as  the  maps  showing  the  character  of  any  part  of  any  township 
or  townships  within  your   respective  districts  have  been  furnished  you   as 
prescribed  in  the  coal-land  regulations,  approved  April  12,  1907,  you  will  ut 
once  post  in  your  office  a  list  of  such  townships,  and  furnish  a  copy  of  such 
list  to  the  newspapers  in  your  district  for  publication  as  a  matter  of  news, 
but  without  cost  to  the  government  for  such  publication. 

2.  You  are  also  directed  to  mail  a  copy  of  these  instructions  and  a  copy 
of  the  instructions  of  April  24,  1907,  to  all  persons  or  associations  of  persons 
shown  by  your  records  to  have  or  claim  any  interest  in  any  land  covered  by 
any  pending  application  to  purchase  under  the  coal-land  laws  or  embraced  in 
any  valid  unexpired  coal  declaratory  statement. 

3.  All  qualified  persons  or  associations   of  qualified  persons  who   legally 
and  in  good  faith  went  into  possession  t)f  and  improved  coal  mines  within 
less  than  sixty  days  preceding  the  date  when  the  lands  upon  which  such 
mines  are  situated  were  withdrawn  from   coal   entry,   and   who   have   not 
filed  declaratory   statements,   may   at   once,   or   within   the  time   prescribed 
by  statute,  namely,  within  sixty  days  after  the  date  of  actual  possession,  and 
the  commencement  of  improvements  on  the  land,  not  counting  the  time  in- 
tervening between  date  of  withdrawal  and  July  1,  1907,  file  such  declaratory 
statements  and  proceed  to  obtain  patent  in   the  manner,   at  the  minimum 
price,  and  within  the  time  fixed  by  law,  regardless  of  the  fact  that  the  maps 
required  by  the  coal-land  regulations  of  April  12,  1907,  may  not  have  been 
filed  in  your  office,  and  regardless  of  the  fact  that  a  higher  price  may  have 
been  fixed  for  such  lands  under  said  regulations. 

4.  All  qualified  persons  or  associations  of  qualified  persons  who  in  good 
faith  filed  legal  declaratory  statements  in  your  office  prior  to  the  date  on  which 
the  lands  covered  thereby  were  withdrawn  from  coal  entry,  and  all  qualified 
persons  legally  holding  as  assignees  under  any  such  declaratory  statement 
by  assignment  made  prior  to  April  12,  1907,  may  proceed  to  obtain  title  in 
the  manner,  at  the  minimum  price,  and  within  the  time  fixed  by  the  statute, 
namely,  fourteen  months  after  the  date  of  actual  possession  and  the  com- 
mencement of  improvements  on  the  land,  not  counting  the  period  intervening 
between  date  of  withdrawal  and  the  mailing  of  copies  of  regulations  as  pre- 
scribed by  paragraph  2  hereof,  regardless  of  the  fact  that  the  maps  required 
by  the  coal-laud  regulations  of  April  12,   1907,  may  not  have  been  filed  in 


614  APPENDIX   C. 

your  office  at  the  date  upon  which  application  to  purchase  is  presented,  and 
regardless  of  the  fact  that  a  higher  price  may  have  been  fixed  for  the  lands 
claimed  under  said  regulations. 
All  parts  of  regulations  in  conflict  herewith  are  hereby  revoked. 

Very  respectfully,  R.  A.  Ballinger,  Commissioner. 


COAL  LANDS. 

Department  of  the  Interior,  General  Land  Office, 

Washington,  D.  C.,  March  21,  1908. 
Registers  and  Receivers,  United  States  Land  Offices. 

Sirs:  Lands  noted  on  the  tract  books  as  "coal  lands"  under  direction  of 
circular  dated  April  24,  1907  (35  L.  D.,  681),  are  not  subject  to  disposal  under 
the  coal  land  laws  prior  to  their  restoration  to  such  entry  by  the  filing  in 
your  office  of  classification  maps  and  lists  of  such  lands,  except  as  provided 
in  circular  of  May  20,  1907  (35  L.  D.,  683) ;  but  it  is  hereby  directed  that  where 
a  qualified  person  or  association  of  persons  has  gone  upon  such  lands  since 
their  withdrawal  and  disclosed  coal  deposits  and  opened  and  improved  a  coal 
mine  or  mines  thereon,  such  persons  or  association  of  persons  will  be  per- 
mitted to  file  in  the  proper  land  office  a  notice  of  claim,  which  notice  should 
briefly  give  the  address  of  the  claimant ;  the  date  of  actual  possession  and 
commencement  of  improvements;  the  date  upon  which  the  mine  was  opened 
and  improved ;  the  character,  value,  and  extent  of  such  improvements ;  the 
description  by  legal  subdivisions  of  the  land  claimed,  which  should  not  exceed 
the  maximum  area  which  may  be  entered  and  purchased  under  the  coal  land 
laws;  and  a  declaration  of  intention  to  claim  said  tract  upon  its  restoration 
under  and  conformably  to  such  coal  land  laws  and  regulations  and  at  such 
price  and  upon  such  terms  and  conditions  as  may  'be  in  force  at  the  time  of 
said  restoration. 

Upon  the  filing  of  any  such  notice  of  claim  you  will  make  pencil  notations 
thereof  upon  the  plats  and  tract  books  of  your  office,  and  when  classification 
maps  and  lists  embracing  such  lands  are  filed  in  your  office,  as  provided  for 
in  the  circular  of  April  24,  1907  (35  L.  D.,  681),  you  will  notify  such  claimant 
by  registered  mail,  at  the  address  given  in  his  notice  of  claim,  of  the  restora- 
tion, price,  terms,  and  conditions  upon  which  he  may  file  upon,  purchase  and 
enter  said  lands,  or  the  coal  deposits  therein,  allowing  him  sixty  days  from 
the  date  of  such  notice  within  which  to  assert  formal  claim  thereto  under  the 
coal  land  laws,  advising  him  that  upon  failure  to  avail  himself  of  the  priv- 
ilege thus  extended  the  lands  and  deposits  therein  will  be  disposed  of  without 
regard  to  his  prior  notice  of  claim  filed  hereunder. 

Very  respectfully,  Fred  Dennett,  Commissioner. 

Approved : 

James  Rudolph  Garfield,  Secretary. 


APPENDIX  D. 

LAND  OFFICE  REGULATIONS  ISSUED  JANUARY  25,  1904, 
ABOUT  TIMBER  AND  STONE  LANDS. 


TIMBER  AND  STOXE  LANDS. 

The  act  of  June  3,  1878  (20  Stat.  L.,  89;  Appendix  No.  6),  provides  for  the 
sale  of  timber  lands  in  the  states  of  California,  Oregon,  Nevada,  and  Wash- 
ington, and  the  act  of  August  4,  1892,  section  2  (27  Stat.  L.,  348;  Appendix 
No.  51),  extends  the  provisions  of  the  former  act  to  all  the  public-land  states. 

1.  The  quantity  of  land  which  may  lawfully  be  acquired  under  said  acts 
by  any  one  person  or  association  is  limited  to  not  exceeding  160  acres,  which 
must  be  in  one  body.    (See  case  of  Daniel  J.  Heyfran,  19  L.  D.,  512.) 

2.  The  land  must  be  valuable  chiefly  for  timber  (or  stone)  and  unfit  for 
cultivation  at  the  time  of  sale  (22  L.  D.,  647). 

3.  It  must  be  unreserved,  unappropriated,  and  uninhabited,  and  without  im- 
provements (except  for  ditch  or  canal  purposes)  save  such  as  were  made  by 
or  belong  to  the  applicant. 

4.  Lands  containing  saline  or  valuable  deposits  of  gold,  silver,   cinnabar, 
copper,  or  coal  are  not  subject  to  entry  under  this  act. 

5.  One  entry  or  filing  only  can  be  allowed  any  person  or  association  of 
persons.     A  married  woman  may  be  permitted  to  purchase  under  said  act, 
provided  the  laws  of  the  state  or  territory  in  which  the  entry  is  made  permit 
a  married  woman  to  purchase  and  hold  real  estate  as  a  femme  sole;    but  in 
addition  to  the  proofs  already  provided  for  she  shall  make  affidavit  at  the 
time  of  entry  that  she  purposes  to  purchase  said  land  with  her  separate 
money,  in  which  her  husband  has  no  interest  or  claim;    that  said  entry  is 
made  for  her  sole  and  separate  use  and  benefit;   that  she  has  made  no  con- 
tract or  agreement  whereby  any  interest  whatever  therein  will  inure  to  the 
benefit  of  her  husband  or  any  other  person,  and  that  she  has  never  made  an  en- 
try under  said  act,  or  derived  or  had  any  interest  whatever,  directly  or  indi- 
rectly, in  or  from  a  former  entry  made  by  any  person  or  association  of  persons. 

6.  A  person  applying  to  purchase  a  tract  under  the  provisions  of  this  act 
is  required  to  make  affidavit  before  a  duly  authorized  attesting  officer  that  he 
has  made  no  prior  application  under  this  act;    that  he  is  by  birth  or  natu- 
ralization a  citizen  of  the  United  States,  or  has  declared  his  intention  to 
become  a  citizen.    If  native  born,  parol  evidence  to  that  fact  will  be  sufficient ; 
if  not  native  born,  record  evidence  of  the  prescribed  qualification  must  be 
furnished.    The  affidavit  must  designate  by  legal  subdivisions  the  tract  which 
the  applicant  desires  to  purchase,  setting  forth  its  character  as  above ;    stat- 
ing that  the  same  is  unfit  for  cultivation,  and  valuable  chiefly  for  its  timber 
or  stone ;   that  it  is  uninhabited ;   contains  no  mining  or  other  improvements, 
except  for  ditch  or  canal  purposes  (if  any  exist),  save  such  as  were  made  by  or 

(615) 


616  APPENDIX   D. 

belong  to  the  applicant,  nor,  as  deponent  verily  believes,  any  valuable  de- 
posit of  gold,  silver,  cinnabar,  copper,  or  coal ;  that  deponent  does  not  apply 
to  purchase  the  same  on  speculation,  but  in  good  faith  to  appropriate  it  to 
his  own  exclusive  use  and  benefit ;  and  that  he  has  not,  directly  or  indirectly, 
made  any  agreement  or  contract,  in  any  way  or  manner,  with  any  person  or 
persons  whomsoever,  by  which  the  title  he  may  acquire  from  the  government 
of  the  United  States  shall  inure  in  whole  or  in  part  to  the  benefit  of  any  per- 
son except  himself. 

7.  Every  person  swearing  falsely  to  any  such  affidavit  is  guilty  of  perjury, 
and  will  be  punished  as  provided  by  law  for  such  offense.    In  addition  thereto, 
the  money  that  may  be  paid  for  the  land  is  forfeited,  and  all  conveyances 
of  the  land,  or  of  any  right,  title,  or  claim  thereto,  are  absolutely  null  and 
void  as  against  the  United  States. 

8.  The  sworn  statement  required  as  above  (section  2  of  the  act)  must  be 
made  upon  the  personal  knowledge  of  applicant,  except  in  the  particulars  in 
which  the  statute  provides  that  the  affidavit  may  be  made  upon  information 
and  belief. 

9.  The  attesting  officer  will  in  every  case  read  this  affidavit  to  applicant, 
or  cause  it  to  be  read  to  him  in  their  presence,  before  he  is  sworn  or  his 
signature  is  attached  thereto. 

10.  The  published  notice  required  by  the  third  section  of  the  act  must  state 
the  time  and  place  when,  and  name  the  officer  before  whom,  the  party  in- 
tends to  offer  proof,  which  must  be  after  the  expiration  of  the  sixty  days  of 
publication  (circular  of  September  5,  1889,  9  L.  D.,  384),  and  must  also  con- 
tain the  names  of  the  witnesses  who  are  to  testify.     (See  case  of  Sarah  L*. 
Bigelow,  20  L».  D.,  6.)     The  period  of  publication  is  complete  when  the  no- 
tice has  been  inserted  for  nine  successive  issues  of  a   weekly  newspaper, 
and  the  full  statutory  period  has  elapsed  (28  L.  D.,  224). 

11.  The  evidence  to  be  furnished  to  the  satisfaction  of  the  register  and  re- 
ceiver at  time  of  entry,  as  required  by  the  third  section  of  the  act,  must  be 
taken  before  an  officer  authorized  to  take  the  same  under  the  act  of  March 
11,  1902  (see  rule  12),  and  will  consist  of  the  testimony  of  claimant,  corroborat- 
ed by  the  testimony  of  two  disinterested  witnesses.     The  testimony  will  be 
reduced  to  writing  by  the  attesting  officer  upon  the  blanks  provided  for  the 
purpose,  after  verbally  propounding  the  questions  set  forth  in  the  printed 
forms.    The  accuracy  of  affiant's  information  and  the  bona  fides  of  the  entry 
must  be  tested  by  close  and  sufficient  oral  examination.    The  attesting  officer 
will   especially  direct  such  examination  to  ascertain  whether  the  entry  is 
made  in  good  faith  for  the  appropriation  of  the  land  to  the  entryman's  own 
use,  and  not  for  sale  or  speculation,  and  whether  he  has  conveyed  the  land 
or  his  right  thereto,  or  agreed  to  make  any  such  conveyance,  or  whether  he 
has  directly  or  indirectly  entered  into  any  contract  or  agreement  in  any  man- 
ner with  any  person  or  persons  whomsoever  by  which  the  title  that  may  be  ac- 
quired by  the  entry  shall  inure,  in  whole  or  in  part,  to  the  benefit  of  any 
person  or  persons  except  himself.     The  attesting  officer  will  certify  to  the 
fact  of  such  oral  examination,  its  sufficiency,  and  his  satisfaction  therewith. 

12.  The  affidavits  and  proofs  required  under  this  act  may  be  taken  before 
the  register  or  receiver,  or  before  any  United  States  commissioner,  or  com- 
missioner of  the  court  exercising  federal  jurisdiction  in  the  territory,  or  be- 
fore the  judge  or  clerk  of  any  court  of  record  in  the  land  district  in  which  the 
lands  are  situated:    Provided,  that  in  case  the  affidavits  and  proofs  are  taken 
out  of  the  county  in  which  the  land  is  located,  the  applicant  must  show,  by 


TIMBER   AND   STONE   LAND   REGULATIONS.  G17 

affidavit  satisfactory  to  the  Commissioner  of  the  General  Land  Office,  that  it 
was  taken  before  the  nearest  or  most  accessible  officer  qualified  to  take  said 
affidavits  and  proofs  in  the  land  district  in  which  the  land  applied  for  is 
located,  but  such  showing  by  affidavit  need  not  be  made  in  making  final  proof 
if  the  proof  be  taken  in  the  county  or  city  where  the  newspaper  is  published 
in  which  the  final  proof  notice  is  printed.  (Act  Mar.  11,  1902,  32  Stat.  L., 
63  :  Appendix  No.  91.) 

13.  The  entire  proof  must  be  taken  at  one  and  the  same  time,  and  pay- 
ment must  be  made  at  the  time  of  offering  proof.  Proofs  will  in  no  case  be 
accepted  in  the  absence  of  a  tender  of  the  money;    and  the  register's  certifi- 
cate will  in  no  case  be  given  to  the  party  or  his  attorney,  but  must  be  handed 
directly  to  the  receiver  by  the  register;   and  no  note  will  be  made  upon  the 
plats  or  tract  books  until  the  receiver's  receipt  has  been  issued.    The  proof, 
certificate  and  receipt  must  in  all  cases  bear  even  date  when  taken  before  the 
register  or  receiver. 

14.  When  an  adverse  claim,  or  any  protest  against  accepting  proof  or  al- 
lowing an  entry,  is  filed  before  final  certificate  has  been  issued,  the  register 
and  receiver  will  at  once  order  a  hearing,  and  will  allow  no  entry  until  after 
their  written  determination  upon  such  hearing  has  been  rendered.     They  will 
report  their  final  action  in  all  protest  and     contest  cases,  and  transmit  the 
papers  to  this  office. 

15.  After   certificate   has   been   issued,   contest,    applications,   and   protests 
will  be  submitted  to  this  office,  as  in  other  cases  of  contest  after  final  entry. 

16.  Contests  may  be  brought  against  timber  and  stone  land  applications  or 
entries,  in  accordance  with  rule  1  of  Rules  of  Practice,  either  by  an  adverse 
claimant  or  by  any  other  person,  and  for  any  sufficient  cause  affecting  the 
legality  or  validity  of  the  filing,  entry,  or  claim. 

17.  In  case  of  an  association  of  persons  making  application  for  an  eptry 
under  this  act,  each  of  the  persons  must  prove  the  requisite  qualifications, 
and  their  names  must  appear  in  the  sworn  statement,  as  in  case  of  an  in- 
dividual person.     They  must  also  unite  in  the  regular  application  for  entry, 
which  will  be  made  in  their  joint  names  as  in  other  cases  of  joint  cash  entry. 
The  forms  prescribed  for  cases  of  applications  by  individual  persons  may  be 
adapted  for  use  in  applications  of  this  class,  and  the  sworn  statement  as  to 
the  character  of  the  land  may  be  made  by  one  member  of  the  association  upon 
his  personal  knowledge. 

18.  No  person  who  has  made  an  individual  entry  or  application  can  there- 
after make  one  as  a  member  of  an  association,  nor  can  any  member  of  an 
association  making  an  entry  or  application,  be  allowed  thereafter  to  make  an 
individual  entry  or  application. 

19.  Applicants  to  make  timber-land  entries,  and  claimants  and  witnesses 
making  final  proof,  must  in  all  cases  state  their  places  of  actual  residence, 
their  business  or  occupation,  and  their  post-office  address.    It  is  not  sufficient 
to  name  the  county  and  state  or  territory  where  a  party  lives,  but  the  town 
or  city  must  be  named;    and  if  residence  is  in  a  city,  the  street  or  number 
must  be  given. 


APPENDIX  E. 

REVISED  REGULATIONS  OF  APRIL  20,  1908,  AND  OF 
JUNE  20,  1908,  OF  THE  INTERIOR  DEPARTMENT  GOV- 
ERNING LEASING  OF  MINERAL  LANDS  OF  MEMBERS 
OF  THE  FIVE  CIVILIZED  TRIBES. 


LEASING  REGULATIONS. 


OIL  AND  GAS  AND  OTHER  MINERAL  LEASES. 
How  TO  PROCURE  APPROVAL  OF  A  LEASE. 

1.  Oil  and  gas  and  other  mineral  leases  requiring  the  approval  of  the  Secre- 
tary of  the  Interior  shall  be  made  for  a  period  of  five  years  from  the  date 
of  the  approval  thereof  by  the  Secretary  of  the  Interior  and  as  much  longer 
thereafter  as  oil,  gas,  or  other  mineral  is  found  in  paying  quantities ;    all 
leases  shall  be  executed  upon  forms  prescribed  herein. 

2.  All  leases  shall  be  in  quadruplicate,  and,  with  the  papers  required,  shall 
be  filed  within  thirty  days  from  and  after  the  date  of  execution  by  the  les- 
sor with  the  United  States  Indian  agent  at  Union  Agency,  Muskogee,  Okl. 

3.  The  act  of  Congress  approved  March  1,  1907  (35  Stat.  1015),  provides: 
"The  filing  heretofore  or  hereafter  of  any  lease  in  the  office  of  the  United 

States   Indian   agent,   Union  Agency,   Muskogee,   Indian   Territory,   shall   be 
deemed  constructive  notice." 

4.  Allottees  are  permitted  to  execute  leases,  after  formal  application  for 
allotment  has  been  accepted. 

5.  No  person,  firm,  or  corporation  will  be  allowed  to  lease,  within  the  ter- 
ritory occupied  by  the  Five  Civilized  Tribes,  for  the  purpose  of  producing 
oil  or  gas,  more  than  4,800  acres  of  land  in  the  aggregate. 

6.  Oil  and  gas  leases  shall  be  accompanied,  when  filed,  with  application,  made 
under  oath,  on  blank  prescribed,  Form  B ;  leases  for  other  mineral  purposes 
shall  -foe  accompanied  by  application  on  Form  L.     These  applications  shall 
state  specifically  with  what  other  persons,  firms,  or  corporations  the  lessee 
is  interested,  either  directly  or  indirectly,  in  oil  or  gas  or  other  mineral 
leases  of  lands  in  the  Five  Civilized  Tribes.    The  Department  in  every  case 
reserves  the  right  at  any  time  to  make  further  inquiry  as  to  the  standing 
and  business  ability  of  any  prospective  lessee. 

7.  Where  the  lessee  is  a  corporation,  its  first  application  must  be  accom- 
panied by  a  sworn  statement  of  its  proper  officer,  showing: 

The  total  number  of  shares  of  the  capital  stock  actually  issued,  and  spe- 

(618) 


LEASING   INDIAN    MINERAL   LANDS.  01!) 

cifically  the  amount  of  cash  paid  into  the  treasury  on  each  share  sold  ;  or.  if 
paid  in  property,  state  kind,  quantity,  and  value  of  the  same  paid  per  share. 

Of  the  stock  sold  how  much  per  share  remains  unpaid  and  subject  to  as- 
sessment. 

How  much  cash  the  company  has  in  its  treasury  and  elsewhere,  and  from 
what  sources  it  was  received. 

What  property,  exclusive  of  cash,  is  owned  by  the  company,  and  its  value. 

What  the  total  indebtedness  of  the  company  is,  and  specifically  the  nature 
of  its  obligations. 

Subsequent  applications  of  corporations  should  show  briefly  the  aggregate 
amounts  of  assets  and  liabilities. 

8.  Corporations,  with  their  first  application,  shall  file  one  certified  copy  of 
articles   of   incorporation,   and,    if   a    foreign   corporation,    evidence    showing 
compliance  with   local   corporation   laws  ;     also   a    list   showing  officers    and 
stockholders,  with  post-office  addresses  and  number  of  shares  held  by  each. 
Statements  of  any   changes   of  officers  or   any  changes   in   or   additions   of 
stockholders  shall  be  furnished  to  the  Indian  agent  on  January  1  of  each 
year,  and  at  any  other  time  when  requested;    affidavits   may  be  required 
of   individual   stockholders  setting   forth   in  what  companies   or   with   what 
persons  or  firms  they  are  interested  in  oil  or  gas  mining  leases  or  lands  in 
the  Five  Civilized  Tribes,  and  whether  they  hold  such  stock  for  themselves 
or  in  trust.    Evidence  shall  also  be  given  —  in  a  single  affidavit  (see  Form  E)  — 
by  the  secretary  of  the  company,  or  by  the  president,  showing  authority  of 
officers  to  execute  lease,  bond,  and  other  papers. 

9.  Where  lessor  is  a  minor  there  must  be  filed  — 
Certified  copy  of  letters  of  guardianship. 

Certified  copy  of  court  orders  authorizing  and  confirming  lease. 
Proof  of  age  of  minor,  preferably  affidavit  of  parent  or  parents. 

10.  Lessee  must  procure  and  file  with  each  lease  an  affidavit  of  the  Indian 
lessor,   made  before  the  district  agent,   United   States   Indian   agent.   Union 
Agency,  if  possible,  or  if  not,  before  a  federal  judge,  clerk  of  the  federal  court. 
United  States  commissioner,   or  county  or  district  judge,  showing  that  the 
lease  was  understood  by  the  lessor,  and  bonus  agreements,  if  any.    (See  Form  D 
prescribed,  which  also  covers  lessee's  affidavit  of  bonus  and  no  development.)1 

11.  Except  to  prevent  loss  or  waste,  leases  of  undivided  inherited  lands 
will  be  approved  only  in  cases  where  all  the  heirs  join  in  the  lease,  and  must 
be  accompanied  by  satisfactory  proof  that  the  lessors  are  the  only  heirs  of  the 
deceased  allottee.     Minor  heirs  can  lease  or  join  adult  heirs  in  leasing  only 
through  guardians  under  order  of  court.     Proof  of  heirship  shall  be  given 
upon  Form  F,  prescribed. 

If  probate  or  other  court  proceedings  have  established  the  heirship  in  any 
case,  or  the  land  has  been  partitioned,  certified  copy  of  final  order,  judgment, 
or  decree  of  the  court  will  be  accepted  in  lieu  of  Form  F,  mentioned  above. 

12.  Lessees  are  required  to  furnish  with  each  oil  or  gas  lease,  to  be  filed  at 
the  time  the  lease  is  presented,  a  bond  upon  Form  C,  with  two  or  more  sure- 
ties. or  with  a  surety  company  duly  authorized  to  execute  bonds.     Such  bond 
shall  be  in  amount  as  follows:     For  leases  covering  40  acres  and  less  than 
80,  $1,000:    for  those  covering  80  acres  and  less  than  120,  $1,500;    for  those 
covering  120  acres  and  not  more  than  160  acres,  $2,000  :    and  for  each  40- 
acre  tract  or  fractional  part  thereof  above  160  acres  an  additional  amount  of 

Provided,   however,  that  a  lessee  shall   be  allowed  to  file  one  bond. 


This  is  section  10  as  amended  June  20,  1908. 


620  APPENDIX    E. 

Form  H — series  1008,  covering  all  leases  to  which  they  are  or  may  become 
parties  instead  of  a  senarate  bond  in  each  case,  said  bond  to  be  in  the  penal 
sum  of  $15,000,  covering  all  such  leases  to  which  they  now  are  or  may  here- 
after become  parties,  in  lieu  of  the  separate  bond  as  above  prescribed. 

The  right  is  specifically  reserved  to  increase  the  amount  of  any  such  bond 
above  the  sum  named  in  any  particular  case  where  the  Secretary  of  the  In- 
terior deems  it  proper  to  do  so.  Bonds  covering  other  mineral  leases  shall 
be  in  such  sum  as  may  be  fixed  by  the  Secretary  of  the  Interior. 

13.  The  Indian  agent  at  Union  Agency,  or  other  government  officer  having 
the  matter  in  charge  or  under  investigation,  may,  at  any  time,  either  before  or 
after  approval  of  a  lease,  call  for  and  secure  any  additional  information  de- 
sired to  carry  out  the  purpose  of  these  regulations,  and  such  information  shall 
be  furnished  within  the  time  specified  in  the  request  therefor. 

14.  When  a  lessee  fails  to  furnish,  within  the  time  specified,  papers  neces- 
sary to  put  his  lease  and  bond  in  proper  form  .for  consideration,  the  Indian 
agent  at  Union  Agency  is  directed  to  forward  such  lease  immediately  for  dis- 
approval. 

Royalties. 

15  a.  The  minimum  rate  of  royalty  on  oil  on  and  after  May  1,  1908,  shall 
be  12%  per  cent  of  the  gross  proceeds  of  the  oil  produced  from  leased  prem- 
ises, and  payment  shall  be  made  at  the  time  of  sale  or  removal  of  oil. 

b.  Any  lease  approved,  delivered,  or  assigned  since  October  14,  1907,  wherein 
the  royalty  on  oil  is  less  than  12%  per  cent,  may,  with  the  approval  of  the 
Secretary  of  the  Interior,  be  subject  to  all  rights,  privileges,  conditions,  and 
terms  of  the  lease  form  approved  and  issued  by  the  Secretary  of  the  Interior 
April  20,  1908,  the  same  as  if  written  therein  at  length,  and  any  of  the  terms 
and  conditions  in  said  executed  lease  in  conflict  with  the  terms  and  condi- 
tions of  said  lease  form  of  April  20,  1908,  will  be  revoked  and  canceled,  on 
and  in  consideration  that  owner  of  said  lease  stipulate   in  writing  to  in- 
crease the  royalty  on  oil  therein  to  12%  per  cent  of  the  gross  proceeds. 

c.  If  the  owner  of  any  lease  mentioned  above  in  b  shall  fail  to  stipulate  in 
writing  for  the  increase  of  royalty  to  12%  per  cent,  the  rate  of  royalty  for 
said  lease  shall,  on  and  after  May  1,  1908,  be  12%  per  cent,  and  said  lease 
shall  be  free  from  any  further  increase  in  the  rate  of  royalty  on  oil,  but  shall 
not  have  the  rights,  privileges,  conditions,  and  terms  of  the  lease  form  ap- 
proved and  issued  by  the  Secretary  of  the  Interior  April  20,  1908,  until  said 
stipulation  is  filed. 

d.  If  the  owner  of  a  lease  delivered  prior  to  October  14,  1907,  wherein  the 
royalty  on  oil  is  less  than  12y2  per  cent,  stipulates  in  writing  within  eight 
years  from  the  date  of  said  lease  to  increase  the  royalty  on  oil  for  said  lease 
to  12%  per  cent,  and  shall  show  that  he  has  notified  the  lessor  in  writing, 
said  lease  shall   thereafter  have  all   the  rights,    privileges,   conditions,    and 
terms  of  the  lease  form  approved  and  issued  April  20,  1908,  the  same  as  if 
written  therein  at  length,  and  any  of  the  terms  and  conditions  of  said  lease 
as  originally  executed  in  conflict  with  the  terms  and  conditions  of  said  lease 
form  of  April  20,  1908,  will  thereby  be  revoked  and  canceled. 

e.  In  all  cases  notice  in  writing  must  be  given  by  owner  of  lease  to  owner 
of  leased  land  of  intention  to  increase  royalty  on  oil  and,  in  consideration 
thereof,  obtain  the  benefits  of  the  lease  form  approved  by  the  Secretary  of 
the  Interior  April  20,  1908,  and  stipulation  of  owner  of  lease  agreeing  to  in- 
crease of  royalty  on  oil  must  be  filed  with  the  Secretary  of  the  Interior  on  or 
before  eight  years  from  date  of  execution  of  lease. 


LEASING   INDIAN   MINERAL  LANDS. 

f.  Any  lease  heretofore  approved,  wherein  the  royalty  on  oil  is  12^  per 
cent  or  more,  may,  on  terms  and  conditions  to  be  approved  by  the  Secretary 
of  the  Interior,  at  any  time  within  eight  years  from  date  of  the  lease,  and 
before  removal  of  restrictions,  be  made  subject  to  the  terms,  conditions, 
rights,  and  privileges  of  the  lease  form  approved  by  the  Secretary  of  the 
Interior  April  20,  1908,  as  though  the  terms  of  said  lease  form  were  written 
in  and  made  part  of  such  lease. 

16.  From  and  after  July  1,  1907,  the  royalty  on  gas-producing  wells,  irre- 
spective of  whether  the  leases  were  heretofore  or  shall  hereafter  be  approved, 
shall  be  as  follows: 

Where  the  capacity  of  a  well  is  tested  at  3,000,000  cubic  feet  or  less  per  day 
of  twenty-four  hours,  $150  per  annum  in  advance,  and  where  the  capacity  is 
more  than  3,000,000  cubic  feet  per  day,  $50  for  each  additional  1,000,000 
cubic  feet  or  major  fraction  thereof. 

The  capacity  of  wells  shall  be  determined,  under  the  supervision  of  the 
Secretary  of  the  Interior,  before  utilized  and  annually  thereafter,  the  amount 
of  royalty  to  be  based  on  such  determination. 

Where  the  lessee  desires  to  retain  the  gas-producing  privilege  of  any  well. 
but  not  to  utilize  the  gas  for  commercial  purposes,  he  shall  pay  an  annual 
rental  of  $50  in  advance,  beginning  from  the  date  of  discovery  of  gas,  and  to 
be  paid  within  thirty  days  therefrom. 

Except  in  cases  of  emergency,  which  shall  not  exceed  ten  days,  not  more 
than  75  per  cent  of  the  capacity  of  any  gas  well  shall  be  utilized. 

Evidence  of  date  of  discovery  of  gas  wells  and  the  beginning  of  utiliza- 
tion must  be  properly  furnished  in  the  form  of  a  sworn  statement. 

Where  wells  produce  both  oil  and  gas,  or  gas  alone  in  limited  quantities. 
or  gas  in  any  quantity  from  a  stratum  which  also  produces  oil  or  salt  water 
to  such  an  extent  that  the  gas  is  unfit  for  domestic  purposes,  lessee  may  dis- 
pose of  such  gas  at  the  following  minimum  rates: 

For  drilling,  5  cents  per  foot  of  drilling  done,  or  a  flat  rate  of  $5  per  day. 

For  pumping,  $1  per  month  for  each  well  pumped. 

For  other  purposes,  1  cent  per  thousand  cubic  feet,  measured  through 
standard  meter. 

For  gas  thus  disposed  of  lessee  will  pay  monthly,  in  the  same  manner  as 
other  royalties  are  paid,  supported  by  sworn  statements,  such  percentage  of 
the  gross  proceeds  received  from  the  sale  of  gas  as  is  paid  under  the  same 
lease  for  royalty  on  oil. 

17.  The  royalty  on  coal  shall  not  be  less  than  8  cents  per  ton  of  2,000  pounds 
on  mine  run,  or  coal  as  it  is  taken  from  the  mines,  including  what  is  com- 
monly called  "slack." 

18.  The  royalty  on  asphaltum  shall  not  be  less  than  10  cents  per  ton  of 
2,000  pounds  on  crude  asphalt,  or  60  cents  per  ton  on  refined  asphalt. 

19.  Application  for  leasing  of  gold,  silver,  iron,  shale,  limestone,  or  other 
mineral  not  specified  in  these  regulations  may  be  submitted,  and  the  royalty 
thereon  shall  be  fixed  after  a  special  investigation  in  each  particular  case 
by  the  Secretary  of  the  Interior. 

20.  All  royalties,  rents,  or  payments  due  under  leases  which  have  been  or 
may  be  approved  by  the  Secretary  of  the  Interior  shall  be  paid  to  the  United 
States  Indian  agent  at  Union  Agency,  Muskogee,  Okl.,  or  to  such  other  per- 
son as  may  be  designated  by  the  Secretary  of  the  Interior,  for  the  benefit 
of  the  various  lessors,  or,  in  cases  of  minors  and  incompetents,  shall  be  de- 
posited as  hereinafter  specified.    No  royalties  on  such  leases  shall  be  paid  by 
the  lessee  direct  to  the  lessors  or  their  representatives. 


C22  APPENDIX    E. 

All  remittances  to  the  United  States  Indian  agent  at  Union  Agency  shall 
be  made  in  New  York,  Chica^^fcjM^ouis  exchange,  except  that  where  same 
can  not  be  procured,  post-ofly  jgB^Kss  money  order  will  be  accepted. 

Royalty  on  oil,  coal,  or  ^P^l  ^vals  produced  in  each  month  (except 
yearly  payments  on  gas  wells  as^BrWi  mentioned)  shall  be  paid  on  or  before 
the  25th  day  of  the  month  next  succeeding. 

21.  With  the  consent  of  the  United  States  Indian  agent,  lessees  may  make 
arrangements  with  the  purchasers  of  oil  for  the  payment  jDf  the  royalty  to 
the  United  States  Indian  agent  by  such  purchasers,  but  such  arrangement,  if 
made,  shall  not  operate  to  relieve  lessees  from  the  responsibility  for  the  pay- 
iiu-nt  of  the  royalty,  should  such  purchaser  fail,  neglect,  or  refuse  to  pay  the 
royalty  when  it  becomes  due. 

Where  lessees  avail  themselves  of  this  privilege,  division  orders,  permitting 
the  pipe-line  companies  or  other  purchasers  of  the  oil  to  withhold  the  royalty 
interest,  shall  be  executed  and  forwarded  to  the  Indian  agent  for  approval 
before  wells  are  brought  in,  as  pipe-line  companies  are  not  permitted  to  ac- 
cept or  run  oil  from  Indian  leases  until  after  the  approval  of  division  orders 
showing  that  the  lessee  has  a  lease  regularly  approved  and  in  effect. 

22.  In  oil  and  gas  leases  until  a  producing  well  is  completed  on  leased  prem- 
ises and  in  all  other  mineral  leases  advance  royalty  shall  be  paid  annually  in 
advance  from  the  date  of  the  lease,  as  follows:    15  cents  per  acre  per  annum 
for  the  first  and  second  years ;   30  cents  per  acre  per  annum  for  the  third  and 
fourth  years ;   75  cents  per  acre  for  the  fifth  year ;  and  in  the  case  of  mineral 
leases  other  than  for  oil  and  gas,  75  cents  per  acre  annually  thereafter;  the 
sums  thus  paid  to  be  credited  on  the  stipulated  royalties. 

The  advance  royalty  for  the  first  year  shall  be  tendered  at  the  time  of  the 
filing  of  the  lease  in  the  office  of  the  United  States  Indian  agent  at  Union 
Agency. 

On  all  mineral  leases  other  than  for  oil  and  gas,  when  the  annual  advance 
royalty  becomes  due  on  a  leased  tract  from  which  minerals  are  being  pro- 
duced, the  lessee  will  not  be  required  to  pay  the  advance  royalty  until  the 
royalty  on  production  during  the  month  within  which  the  advance  royalty 
falls  due  is  accounted  for ;  and  if  royalty  on  production  equals  or  exceeds 
the  advance  royalty,  it  will  be  accepted  as  covering  both  items,  but  if  it 
does  not  equal  the  advance  royalty  due,  the  lessee  shall  include  the  difference 
with  his  payment  on  production. 

23.  An  oil  or  gas  lessee  shall  drill  at  least  one  well  on  leasehold  within 
twelve  months  from  the  date  of  the  approval  of  the  lease  by  the  Secretary 
of  the  Interior,  or  may  delay  drilling  said  well  for  not  exceeding  five  years 
from  the  date  of  such  approval  by  paying  to  the  United  States  Indian  agent, 
Union  Agency,  Muskogee,  Okl.,  for  the  use  and  benefit  of  lessor  (subject  to 
the  limitations  and  conditions  in  said  lease  contained),  in  addition  to  said 
advance  royalty  the  sum  of  1  per  acre,  per  annum,  for  each  year  the  com- 
pletion of  such  well  is  delayed,  payable  on  or  before  the  end  of  each  year. 
The  lessee  may  be  required  to  drill  and  operate  wells  to  offset  paying  wells 
on  adjoining  tracts  and  within  300  feet  of  the  dividing  line. 

24.  Sworn  reports  accompanying  each  royalty  remittance  shall  be  made  by 
each  lessee  within  twenty-five  days  from  the  close  of  each  month  for  the 
month  preceding,  covering  all  operations,  whether  there  has  been  production 
or  not,  except  that  where  division  orders  have  been  approved  and  the  royalty 
paid  by  the  pipe-line  company  or  other  purchaser  of  oil,  lessees  need  not 
make  monthly  reports  direct. 


LEASING    INDIAN    MINERAL    LANDS.  623 

A  lessee  may  include  within  one  sworn  statement  all  leases  upon  which  there 
is  no  production  or  upon  which  dry  ho^y^^^^b<>c>n  drilled. 

Quarterly  reports,  whether  or  not^l  ^^is  paid  by  pipe-line  company 
or  other  purchaser,  shall  be  made  *^BI  Bsee  within  twenty-five  days 
after  December  31,  March  31,  June  3i(li^E^pteinber  30  of  each  year,  upon 
forms  provided,  showing  manner  of  operations  and  total  production  during 
such  quarter. 

Sworn  reports  of  gas  wells  shall  be  made  both  when  discovered  and  when 
utilized.  * 

25.  All  royalties,  rents,  or  payments  accruing  under  any  lease  made  for  or 
on  behalf  of  any  minor  or  incompetent  shall  be  deposited  by  the  Indian  agent 
or  other  government  officer  to  whom  paid,  to  the  credit  of  the  guardian  or 
curator  of  such  minor  or  incompetent,  in  some  national  bank  or  banks  designat- 
ed by  the  Commissioner  of  Indian  Affairs,  and  may  be  withdrawn  therefrom 
by  such  guardian  or  curator,  with  the  consent  of  the  United  States  Indian 
agent,  in  sums  not  exceeding  $50  per  month  unless  otherwise  ordered  by  the 
court.     Sums  in  excess  of  $50  per  month  may  be  withdrawn  on  order  of  the 
proper  court  and  not  otherwise.     Such  designated  banks  shall  furnish  satis- 
factory surety  bonds,  to  be  approved  by  the  Secretary  of  the  Interior,  guar- 
anteeing the  safe  care  and  custody  of  the  funds  so  deposited. 

Operations. 

26.  Operations  upon  land  covered  by  any  lease  requiring  the  approval  of 
the   Secretary  of  the  Interior  are  not  permitted  until  after  such   lease  is 
regularly  approved,  delivered  and  official  notice  thereof  given. 

27.  Lessees  shall  not  be  allowed  to  drill  within  200  feet  of  the  division 
lines  between  lands  covered  by  their  leases  and  adjoining  lands,  except  in 
cases  where  wells  on  adjoining  tracts  are  drilled  at  a  less  distance,  in  which 
case  lessees  may  offset  such  wells  by  drilling  at  an  equal  distance  from  the 
line;    and  provided  further,  that  in  cases  where  the  dimensions  of  leased 
tracts  do  not  permit  drilling  200  feet  from  the  lines,  wells  may  be  drilled  at 
points  halfway  between  lines  which  are  400  feet  or  less  apart. 

28.  Lessees  shall  agree  to  allow  the  lessors  and  their  agents,  or  any  au- 
thorized representative  of  the  Interior  Department,  to  enter,  from  time  to 
time,  upon  and  into  all  parts  of  the  leased  premises  for  the  purposes  of  in- 
spection, and  shall  further  agree  to  keep  a  full  and  correct  account  of  all 
operations  and  make  reports  thereof,  as  herein  required,  and  their  .books  and 
records  showing  manner  of  operations  and  persons  interested  shall  b%open  at 
all  times  for  the  examination  of  such  officers  of  the  Department  as:  shsTll  be 
instructed  in  writing  by  the  Secretary  of  the  Interior  to  make  such  examina- 
tion. 

29.  Lessees  or  operators  using  natural  gas  for  outside  illumination,  or  in 
connection   with   operations   carried   on   under   approved   oil   and  gas   leases 
covering  lands  within  the  territory  of  the  Five  Civilized  Tribes,  are  required 
to  use  the  device  known  as  a  "Storm  burner,"  or  other  burner  consuming  not 
more  than  15  cubic  feet  of  gas  per  hour.     Such  lamps  shall  not  be  lighted 
earlier  than  5  o'clock  in  the  afternoon  and  shall  be  extinguished  not  later  than 
8  o'clock  each  morning,  and  not  more  than  four  such  lights  shall  be  used  in 
drilling  one  well.     Stopcocks  shall  be  placed  on  all  pipes  used  for  conveying 
pis  to  burning  devices  of  any  character,  and  the  gas  shall  be  shut  off  at  all 
times  when  not  in  use.    Boilers  using  gas  for  fuel  shall  have  smokestacks  or 
<-hi  iimeys  not  less  than  12  feet  in  height. 


624  APPENDIX   E. 

30.  Operators  upon  approved  leases  within  the  territory  of  the  Five  Civi- 
lized Tribes  are  required  to  use  all  possible  diligence  to  prevent  any  unneces- 
sary waste  of  natural  gas.     Operators  in  possession  of  any  gas  well  shall, 
within  five  days  after  gas-bearing  sand  or  rock  is  penetrated,  shut  in  and 
confine  such  gas  in  the  well  except  so  much  of  the  product  as  can  be  utilized. 
Lessees  or  operators  shall  pay  to  the  United  States  Indian  agent  at  Union ' 
Agency,  Muskogee,  Okl.,  the  sum  of  $10  per  day  for  each  well  during  the  time 
such  well  or  wells  are  allowed  to  go  uncontrolled  or  uncared  for,  unavoidable 
accidents  excepted,  and  a  failure  on  the  part  of  the  lessees  or  operators  to 
prevent  a  waste  of  gas  will  further  subject  the  lease  to  cancellation  by  the 
Secretary  of  the  Interior  after  due  notice. 

In  cases  where  oil-bearing  strata  are  found  at  a  greater  depth  than  gas- 
bearing  sand,  packers  and  two  strings  of  casing  shall  be  used,  so  that  waste  of 
the  gas  from  the  first  sand  shall  be  prevented,  thereby  securely  shutting  in 
and  preserving  the  gas. 

31.  A  lessee  producing  crude  oil  or  natural  gas  within  the  territory  of  the 
Five  Civilized  Tribes  shall  at  time  of  abandoning  a  well  securely  plug  the 
same  so  as  to  effectually  shut  off  all  water  from  the  oil-bearing  stratum,  or  in 
the  manner  required  by  the  laws  of  the  state  of  Oklahoma.     Upon  the  aban- 
donment of  a  well  in  which  no  oil  or  gas  bearing  stratum  is  encountered, 
lessee  shall  fill  the  bottom  of  the  hole  solidly  for  at  least  25  feet  with  sand 
pumpings,  gravel,  and  pulverized  rock ;    immediately  on  top  of  such  filling 
shall  be  seated  a  dried  pine  plug  of  not  less  than  2  feet  in  length  and  of  a 
diameter  of  not  less  than  one-fourth  inch  less  than  the  inside  diameter  of 
the  casing ;  upon  this  plug  another  filling  of  at  least  25  feet  of  sand  pumpings 
or  other  mineral  substance  shall  be  made,  upon  which  there  shall  be  seated 
a  dried  pine  plug,  and  the  well  again  filled  for  at  least  25  feet  with  similar 
filling  material ;  after  the  casing  has  been  drawn  from  such  well  there  shall 
be  immediately  seated  at  the  point  where  such  casing  was  seated  a  cast-iron 
ball,  or  tapered  wooden  plug  at  least  2  feet  in  length,  the  diameter  of  which 
ball  or  the  top  of  which  plug  shall  be  greater  than  that  of  the  hole  below 
the  point  where  such  casing  was  seated,  and  above  such  ball  or  plug  such 
well  shall  be  solidly  filled  writh  the  aforesaid  filling  material  for  a  distance 
of  at  least  50  feet;    and  the  hole  shall  then  be  closed  or  marked.     Or  such 
abandoned  well  may  be  plugged  in  the  manner  required  by  the  laws  of  the 
state  of  Oklahoma.    Every  lessee  or  operator  shall  pay  to  the  United  States 
Indian  agent,  Union  Agency,  Muskogee,  Okl.,  for  the  use  and  benefit  of  lessor, 
the  sum  of  $10  per  day  for  each  well  drilled  during  the  time  such  well  re- 
mains uncapped  or  unplugged  as  herein  provided. 

32.  Lessees  shall  provide  proper  tankage,   of  suitable  shape  for  accurate 
measurement,  into  which  all  production  of  crude  oil  shall  be  conducted  direct 
from  wells  through  pipes  or  other  closed  connections.     Where  a  lease  covers 
a  homestead  and  surplus  lands  and  such  surplus  lands  are  sold,   separate 
tankage  must  be  supplied  for  the  homestead  tracts  and  oil  extracted  there- 
from reported  separately.    If  the  contents  of  such  tanks  are  disposed  of  in 
any  manner  other  than  to  a  purchaser  to  whom  a  division  order  has  been 
approved,  or  removed  from  the  leased  premises,  accurate  measurement  shall 
first  be  made  and  the  production  reported  and  royalty  thereon  paid  to  the 
United  States  Indian  agent  in  the  usual  manner. 

In  cases  of  emergency,  where  the  capacity  of  new  wells  is  such  that  lessees 
are  unable  immediately  to  provide  proper  tankage,  production  may  be  con- 
ducted to  open  ponds,  or  earthen  tanks,  but  in  no  case  shall  any  embankment 
exceed  15  feet  in  height.  Such  ponds  or  tanks  shall  be  so  constructed  as  to 


LEASING   INDIAN    MINERAL   LANDS.  C25 

minimize  the  danger  of  overflow  or  collapse,  or  damage  to  crops  or  adjacent 
property. 

Crude  oil  run  into  earthen  tanks  in  cases  of  emergency,  as  indicated  above, 
shall  not  be  allowed  to  remain  in  such  earthen  tankage  for  a  longer  period 
than  fifteen  days,  except  that  whore  lessees  desire  to  so  store  their  oil,  and 
after  it  has  been  properly  gauged  and  royalty  paid  thereon,  such 
may  be  used  when  so  constructed  as  to  remove  all  reasonable  danger  of  fire, 
overflow,  and  damage  to  other  property.  The  right  is  reserved  to  supervise 
the  construction  of  earthen  tanks  where  deemed  necessary. 

Oil  to  be  temporarily  held  or  stored  in  earthen  tankage  must  be  run  from 
the  wells  into  receiving  tanks  capable  of  accurate  measurement,  and  then 
gauged  before  being  turned  into  earthen  tankage. 

33.  Oil  shall  not  be  sold  to  a  pipe-line  company  until  a  division  order  is 
filed  as  hereinbefore  provided.     Should  the  lessee  desire  to  sell  oil  or  remove 
it  from  the  leased  premises  in  any  other  manner,  such  sale  or  removal  shall 
not  be  made  until  authorized  by  the  Indian  agent.    Lessee  or  his  representa- 
tive shall  actually  be  present  when  oil  taken  under  division  orders  is  run 
by  pipe-line  companies,  and  lessee  shall  be  responsible  for  the  correct  measure- 
ment and  report  of  oil  so  run;    otherwise,  the  approval  of  division  order 
may  be  revoked. 

34.  Whenever  operators  desire  to  secure  from  allotted  lands  timber  for 
rigs,  transmission  of  power,  foundations,  or  for  any  other  purpose,  they  must 
first  obtain  the  consent  of  the  allottee  and  properly  compensate  the  owner  of 
the  timber  therefor. 

35.  Lessees  shall  keep  a  true  and  correct  record  of  each  well  drilled,  in- 
cluding a  complete  log  made  at  the  time  of  drilling,  and,  whenever  requested 
by  properly  authorized  officers  of  the  Interior  Department,  shall  furnish  a 
copy  of  such  record  and  log,  duly  certified. 

36.  Lessees  are  required,  when  so  requested,  to  file  a  plat  of  their  leases 
showing  exact  locations  of  all  producing  oil  or  gas  wells,  dry  wells,  proposed 
locations,  tanks,  power  houses,  pumping  stations,  etc.     Such  plats,  when  de- 
sired, should  also  show  locations  of  dry  or  producing  wells  upon  adjoining 
tracts,  so  far  as  known  to  lessee. 

37.  Lessees  are  not  permitted  to  locate  either  tanks  or  wells  within  200 
feet  of  any  building  used  as  a  dwelling,  granary,  or  shelter  for  stock,  except 
where  actually  necessary  to  offset  wells  upon  adjoining  tracts. 

38.  All  "B.  S."  or  refuse  from  tanks  or  wells  shall  be  drained  off  into 
proper  receptacles  at  a  safe  distance  from  the  tanks,  wells,  or  buildings,  to 
the  end  that  it  may  be  disposed  of  by  being  burned  or  transported  from  the 
premises ;    but  in  no  case  shall  it  be  permitted  to  flow  over  the  surface  of 
the  land  to  the  injury  of  any  surrounding  property  or  to  the  pollution  of  any 
stream.     Salt  water  or  any  other  product  from  any  oil  or  gas  well,  not  mar- 
ketable, shall  not  be  permitted  to  run  into  any  tanks  or  pools  used  for  wa- 
tering stock. 

Assignments. 

39  a.  No  lease  or  any  interest  therein,  by  working  or  drilling  contract  or 
otherwise,  or  the  use  of  such  lease,  shall  be  sublet,  assigned,  or  transferred, 
directly  or  indirectly,  without  the  consent  of  the  Secretary  of  the  Interior; 
and  if  at  any  time  the  Secretary  of  the  Interior  is  satisfied  that  the  provisions 
of  any  lease,  or  that  any  of  the  regulations  heretofore  or  that  may  be  here- 
after prescribed  have  been  violated,  he  reserves  authority  to  terminate 
COST.MIN.L.— 40 


626  APPENDIX    E. 

the  lease  In  the  manner  therein  provided,  and  the  lessor  shall  then  be  entitled 
to  take  immediate  possession  of  the  land. 

b.  All  leases  hereafter  approved,  or  any  interest  therein,  may  be  assigned 
or  transferred  with  the  approval  of  the  Secretary  of  the  Interior,  it  being 
understood  that  to  secure  such  approval  the  proposed  assignee  need  only  be 
qualified  to  hold  such  a  lease  under  the  existing  rules  and  regulations,  and 
furnish  a  bond  with  responsible  surety  to  the  satisfaction  of  the  Secretary 
of  the  Interior,  conditioned   for  the  faithful   performance  of  the  covenants 
and  conditions  of  said  lease. 

c.  In  all  leases  heretofore  approved  where  the  royalty  on  oil  is  now  less 
than  I2y2  per  cent,  if  the  lessee  at  any  time  within  eight  years  from  the  date 
of  the  lease  shall  consent  to  increase  said  royalty  on  oil  to  12^  per  cent  of  the 
gross  proceeds,  said  lease  shall  thereafter  be  subject  to  and  have  all   the 
rights,  privileges,  and  terms  in  the  lease  form  approved  by  the  Secretary  of 
the  Interior  April  20,  1908,  and  be  assignable  as  provided  in  "b"  hereof. 

d.  If  the  present  owner  of  a  lease  heretofore  approved,  in  which  the  royalty 
on  oil  is  less  than  12^  per  cent,  will  not  stipulate  to  increase  such  royalty 
to  12%  per  cent  of  the  gross  proceeds  produced,  and  the  owner  of  said  lease 
should  hereafter  desire  to  transfer  or  assign  the  same,  then  said  owner  shall 
make  application  to  the  Indian  agent,  stating  the  reasons  for  the  proposed 
assignment,  and  when  such  application  is  approved  by  said  agent,  formal  as- 
signment papers  in  quadruplicate  may  be  entered  into  and  filed  with  the 
Indian  agent  for  transmission  to  the  Secretary  of  the  Interior.     The  accept- 
ance by  the  proposed  assignee  and  consent  of  the  surety  company  shall  be 
filed  on  the  form  prescribed  herein,  "G."    Financial  showing  and  other  papers 
as  required  from  an  original  lessee  must  be  furnished  by  the  assignee,  and  the 
parts  of  the  lease  distributed  to  the  lessee  and  lessor  shall  be  returned  for 
endorsement.     No  assignment  under  this  regulation  (39d)  shall  be  allowed 
without  notice  first  having  been  given  to  the  lessor  of  the  application  to  as- 
sign. 

Cancellations. 

40.  Where  a  lessee  makes  an  application  for  the  cancellation  of  an  ap- 
proved lease,  all  royalties  or  rentals  due  up  to  the  date  of  the  application 
for  cancellation  must  be  paid  before  such  application  will  be  considered,  and 
the  parts  of  the  lease  delivered  to  the  lessor  and  the  lessee  should  be  sur- 
rendered. 

forms. 

41.  Applications,  leases,  and  other  papers  must  be  upon  forms  prepared 
by  the  Department,  and  upon  application  the  Indian  agent  at  Muskogee,  Old., 
will  furnish   prospective  lessees  with  such   forms  at  a  cost  of  $1  per  set. 
Copies  of  such  forms  are  printed  herewith. 

Set  1. 

Form  A.  Oil  and  gas  lease. 

Form  B.  Application  for  oil  and  gas  lease,  including  financial  showing. 
Form  C.  Bond. 

Form  D.  Affidavit  of  Indian  lessor,  proof  of  bonus,  etc. 
Form  E.  Authority  of  officers  to  execute  papers. 
Form  F.  Proof  of  heirship. 
Form  G.  Assignment. 


LEASING    INDIAN    MINERAL    LANDS.  627 

Ft>rm  H.  $15,000  bond. 

Form  I.  Stipulation  increasing  oil  royalty  and  extending  term  of  lease. 
Form  J.  Stipulation  increasing  oil  royalty,  extending  term  of  lease,  and  re- 
scinding regulations  of  October  14,  1907. 
Form  K.  Lessor's  consent  to  extension  of  term  of  lease. 

Set  2. 

Form  L.  Application  for  mineral  lease,  other  than  oil  and  gas. 

Form  M.  Coal  and  asphalt  lease. 

Form  N.  Lease  for  minerals,  other  than  oil  and  gas  or  coal  and  asphalt. 

Form  O.  Agricultural  lease. 

Form  P.  Grazing  lease. 

Form  Q.  Affidavit  of  personal  surety  to  accompany  bond. 

Lands  from  Which  Restrictions  have  been  or  may  be  Removed. 

42  a.  On  and  after  January  1,  1908,  all  leases  of  any  description  whatever 
executed  by  an  allottee  of  the  Five  Civilized  Tribes  on  land  from  all  of  which 
the  restrictions  against  alienation  had  been  removed  before  such  execution, 
may  be  executed  without  any  provision  for  reference  to  or  supervision  by 
the  Secretary  of  the  Interior  or  any  official  of  the  Department  of  the  Interior ; 
and  the  Indian  agent  shall  refuse  to  accept  for  consideration  any  lease  exe- 
cuted after  January  1,  1908,  covering  land  from  all  of  which  restrictions  had 
been  removed  before  such  execution. 

b.  All  leases  executed  before  the  removal  of  restrictions  against  alienation, 
on  land  from  all  of  which  restrictions  against  alienation  shall  be  removed 
after  such  execution,  If  such  leases  contain  specific  provision  for  approval 
by  the  Secretary  of  the  Interior,  whether  now  filed  with  the  Department  or 
presented  for  consideration  hereafter,  will  be  considered  and  acted  upon  by 
this  Department  as  heretofore. 

c.  All  leases  executed  and  approved  heretofore  or  hereafter  on  land  from 
all  of  which  restrictions  against  alienation  have  been  or  shall  be  removed, 
even  if  such  leases  contain  provisions  authorizing  supervision   by  this  De- 
partment,  shall,   after  such   removal   of   restrictions   against   alienation,   be 
operated  entirely  free  from  such  supervision,  and  the  authority  and  power 
delegated  to  the  Secretary  of  the  Interior  in  said  leases  shall  cease,  and  all 
payments  required  to  be  made  to  the  United  States  Indian  agent  shall  there- 
after be  made  to  lessor  or  the  then  owner  of  said   land,   and  changes   in 
regulations  thereafter  made  by  the  Secretary  of  the  Interior  applicable  to 
oil  and  gas  leases  shall  not  apply  to  such  leased  land  from  which  said  re- 
strictions are  removed,  except  where  a  bond  is  required  in  said  lease  it  shall 
be  furnished  with  responsible  surety,  unless  the  giving  of  said  bond  is  waived 
by  lessor  or  the  owner  of  the  land. 

d.  In  event  restrictions  are  removed  from  a  part  of  the  land  included  in  a 
lease  for  oil,  gas,  or  other  mineral  purposes,  the  entire  lease  shall  continue 
subject  to  approval  and  supervision  of  the  Secretary  of  the  Interior,   and 
all  royalties  thereunder  shall  be  paid  to  the  Indian  agent  until  such  time  as 
the  lessor  and  lessee  shall  furnish  the  Secretary  of  the  Interior  satisfactory 
information  that  adequate  arrangements  have  been  made  to  account  for  the 
oil,  gas,  or  mineral  upon  the  restricted  land  separately  from  that  upon  the 
unrestricted.     Thereafter  the  restricted  land  only  shall  be   subject   to   the 
supervision  of  the  Secretary  of  the  Interior,  provided  that  the  unrestricted 


628  APPENDIX   E. 

portion  shall  be  relieved  from  such  supervision  as  in  the  lease  or  regulations 
provided. 

43.  These  regulations  shall  be  applicable  to  leases  heretofore  made  and 
approved,  as  well  as  those  hereafter  entered  into,  except  as  otherwise  herein 
provided 

********** 

C.  F.  Larrabee, 

Acting  Commissioner  of  Indian  Affairs. 
Department  of  the  Interior, 

Washington,  D.  C.,  April  20,  1908. 
Approved: 

James  Rudolph  Garfield,  Secretary. 


FORMS* 
[Form  A. — Approved  April  20,  1908.] 

OIL  AND  GAS  MINING  LEASE  UPON  LAND  SELECTED  FOR  ALLOT- 
MENT,   . .  NATION,  OKLAHOMA. 

This  indenture  of  lease,  made  and  entered  into  in  quadruplicate  on  this 
day  of ,  A.  D.  19. .,  by  and  between  

,   of    

a  ,1  citizen  of  the  Nation,  party  of  the  first  part,  here- 
inafter designated  as  lessor,  and 

of ,  party  of  the  second 

part,  hereinafter  designated  as  lessee,  under  and  in  pursuance  of  the  provisions 

of  the  act  of  Congress  approved  ,2    ,  witnesseth: 

1.  The  lessor  for  and  in  consideration  of  one  dollar,  the  receipt  whereof  is 
acknowledged,  and  of  the  royalties,  covenants,  stipulations,  and  conditions 
hereinafter  contained,  and  hereby  agreed  to  be  paid,  observed,  and  perform- 
ed by  the  lessee,  does  hereby  demise,  grant,  lease,  and  let  unto  the  lessee  for 
the  term  of  five  years  from  the  date  of  the  approval  hereof  by  the  Secretary 
of  the  Interior,  and  as  much  longer  thereafter  as  oil  or  gas  is  found  ID  paying 
quantities,  all  the  oil  deposits  and  natural  gas  in  or  under  the  following-de- 
scribed tract  of  land,  lying  and  being  within  the  county  of 

and  State  of  Oklahoma,  to  wit:    The 


of  section ,   township    ,   range    ,   of   the   Indian   meridian, 

and  containing acres,  more  or  less,  with  the  exclusive  right  to  pros- 
pect for,  extract,  pipe,  store,  and  remove  oil  and  natural  gas,  and  to  occupy 
and  use  so  much  only  of  the  surface  of  said  land  as  may  reasonably  be 
necessary  to  carry  on  the  work  of  prospecting  for,  extracting,  piping,  storing, 

*Only  the  forms  of  leases  on  mineral  lands  are  printed  in  this  Appendix. 

1  Here  insert  full-blood,  mixed-blood,  intermarried,  or  freedman,  as  shown  by  the 
rolls  of  the  Commission  to  the  Five  Civilized  Tribes. 

2  If  a  full-blood,  insert  "April  26,  1906,  34  Stat.  L,,  137 ;"   if  a  mixed-blood  Creek 
or  Creek  freedman,  insert  "June  30,  1902,  32  Stat.  L.,  500 ;"   and  if  a  mixed-blood 
Cherokee  or  Cherokee  freedman,  insert  "July  1,  1902,  32  Stat.  L.,  716." 


LEASING   INDIAN    MINERAL   LANDS.  G20 

and  removing  such  oil  and  natural  gas,  also  the  right  to  obtain  from  wells  or 
other  sources  on  said  land,  by  means  of  pipe  lines  or  otherwise,  a  sufficient 
supply  of  water  to  carry  on  said  operations,  and  also  the  right  to  use,  free  of 
cost,  oil  and  natural  gas  as  fuel  so  far  as  necessary  to  the  development  and 
operation  of  said  property. 

2.  The  lessee  hereby  agrees  to  pay  or  cause  to  be  paid  to  the  United  States 
Indian  agent,  Union  Agency,  Muskogee,  Okl.,  for  the  lessor,  as  royalty,  the  sum 

of per  cent,  of  the  gross  proceeds  of  all  crude  oil  extracted  from  the 

said  land,  such  payment  to  be  made  at  the  time  of  sale  or  removal  of  the  oil. 
And  the  lessee  shall  pay  as  royalty  in  advance  on  each  gas-producing  well 
utilized  otherwise  than  as  provided  herein,  where  the  capacity  is  tested  at 
three  million  cubic  feet  or  less  per  day  of  twenty-four  hours,  one  hundred  and 
fifty  dollars  per  annum,  and  where  the  capacity  is  more  than  three  million 
cubic  feet  per  day,   fifty  dollars  for  each   additional   million   cubic   feet  or 
major  fraction  thereof.    The  lessor  shall  have  the  free  use  of  gas  for  domestic- 
purposes  in  his  residence  on  the  leased  premises,  provided  there  be  surplus 
gas  produced  on  said  premises  over  and  above  enough  to  fully  operate  the 
same.     Failure  on  the  part  of  the  lessee  to  use  a  gas-producing  well,  which 
can  not  profitably  be  utilized  at  the  rate  herein  prescribed,  shall  not  work 
a  forfeiture  of  this  lease  so  far  as  the  same  relates  to  mining  oil,  but  if 
the  lessee  desires  to  retain  gas-producing  privileges,  lessee  shall  pay  a  rental 
of  fifty  dollars  per  annum  in  advance  on  each  gas-producing  well,  gas  from 
which  is  not  marketed  or  not  utilized  otherwise  than  for  operations  under 
this  lease,  the  first  payment  to  become  due  and  to  be  made  within  thirty 
days  from  the  date  of  the  discovery  of  gas. 

3.  Until  a  producing  well  is  completed  on  said  premises  the  lessee  shall 
pay  or  cause  to  be  paid  to  the  said  agent  for  lessor,  as  advance  annual  roy- 
alty on  this  lease,  fifteen  cents  per  acre  per  annum,  annually,  in  advance, 
for  the  first  and  second  years;  thirty  cents  per  acre  per  annum,  annually, 
in  advance,  for  the  third  and  fourth  years ;  and  seventy-five  cents  per  acre  per 
annum,  in  advance,  for  the  fifth  year ;  it  being  understood  and  agreed  that 
said  sums  of  money  so  paid  shall  be  a  credit  on  the  stipulated  royalties. 

4.  The  lessee  shall  exercise  diligence  in  sinking  wells  for  oil  and  natural 
gas  on  land  covered  by  this  lease,  and  drill  at  least  one  well  thereon  within 
twelve  months  from  the  date  of  the  approval  of  this  lease  by  the  Secretary 
of  the  Interior,  and  on  failure  so  to  do  this  lease  becomes  null  and  void: 
Provided,   however,   there  is  reserved  and   granted  to  the  lessee  the  right 
and  privilege  of  delaying  the  drilling  of  said  well  for  not  exceeding  five  years 
from  the  date  of  the  approval  of  the  lease  by  the  Secretary  of  the  Interior 
by  paying  to  the  United  States  Indian  agent,  Union  Agency,  Muskogee,  Okl., 
for  the  use  and  benefit  of  the  lessor  (subject  to  the  limitations  and  condi- 
tions hereinafter  contained),  in  addition  to  said  advance  royalty,  the  sum  of 
one  dollar  per  acre,  per  annum,  for  each  year  the  completion  of  such  well 
is  delayed,  payable  on  or  before  the  end  of  each  year;  but  lessee  may  be  re- 
quired to  drill  and  operate  wells  to  offset  paying  wells  on  adjoining  tracts 
and  within  three  hundred  feet  of  the  dividing  line. 

5.  The  lessee  shall  carry  on  development  and  operations  in  a  workmanlike 
manner,  commit  no  waste  on  the  said  land  and  suffer  none  to  be  committed 
upon  the  portion  in  his  occupancy  or  use,  take  good  care  of  the  same  and 
promptly  surrender  and  return  the  premises  upon  the  termination  of  this 
lease  to  lessor  or  whomsoever  shall  be  lawfully  entitled  thereto,  unavoidable 
casualties  excepted ;  shall  not  remove  therefrom  any  buildings  or  permanent 
improvements  erected  thereon  during  the  said  term  by  the  said  lessee,  but 
said  buildings  and  improvements  shall  remain  a  part  of  said  land  and  be- 


630  APPENDIX   E. 

come  the  property  of  the  owner  of  the  land  as  a  part  of  the  consideration 
for  this  lease,  excepting  the  tools,  derricks,  boilers,  boiler  houses,  pipe  lines, 
pumping  ajid  drilling  outfits,  tanks,  engines,  and  machinery,  and  the  casing 
of  all  dry  or  exhausted  wells,  which  shall  remain  the  property  of  the  lessee, 
and  may  be  removed  at  any  time  prior  to  sixty  days  after  the  termination 
of  the  lease  by  forfeiture  or  otherwise ;  shall  not  permit  any  nuisance  to 
be  maintained  on  the  premises  under  lessee's  control,  nor  allow  any  intoxi- 
cating liquors  to  be  sold  or  given  away  for  any  purposes  on  such  premises; 
shall  not  use  such  premises  for  any  other  purpose  than  those  authorized  in 
this  lease;  and  before  abandoning  any  well  shall  securely  plug  the  same 
so  as  effectually  to  shut  off  all  water  from  the  oil-bearing  stratum,  or  in 
the  manner  required  by  the  laws  of  the  state  of  Oklahoma. 

6.  The  lessee  shall  keep  an  accurate  account  of  all  oil-mining  operations, 
showing  the  sales,  prices,  dates,  purchasers,  and  the  whole  amount  of  oil 
mined  or  removed ;  and  all  sums  due  as  royalty  shall  be  a  lien  on  all  im- 
plements, tools,  movable  machinery,  and  all  other  personal  chattels  used  in 
operating  said  property,  and  upon  all  of  the  unsold  oil  obtained  from  the 
land  herein  leased,  as  security  for  payment  of  said  royalty. 

7.  The  lessee  may  at  any  time,  by  paying  to  the  Indian  agent  all  amounts 
then  due  as  provided  herein,  and  the  further  sum  of  one  dollar,  surrender 
and  cancel  this  lease  and  be  relieved  from  all  further  obligations  or  liability 
hereunder:     Provided,  if  this  lease  has  been  recorded,  lessee  shall  execute 
a  release  and  record  the  same  in  the  proper  county  recording  office:     Pro- 
vided further.     In  event  restrictions  are  removed  from  all  leased  premises, 
the  lessee  may  surrender  all  the  undeveloped  portion  thereof,  by  paying  the 
lessor  all  amounts  then  due  and  the  further  sum  of  one  dollar,  which  sur- 
render shall  not  affect  the  terms  hereof  as  to  each  producing  well  and  ten 
acres  of  said  premises  as  nearly  in  square  form  as  possible  next  contiguous 
to  and  surrounding  each  of  said  wells,  and  execute  and  record  a  cancellation 
of  premises  surrendered. 

8.  This  lease  shall  be  subject  to  the  regulations  of  the  Secretary  of  the 
Interior,  now  or  hereafter  in   force,   relative  to   such  leases,  all   of  which 
regulations  are  made  a  part  and  condition  of  this  lease:    Provided,  however, 
that  no  regulations  made  after  the  approval  of  this  lease,  affecting  either 
the  length  of  term  of  oil  and  gas  leases,  the  dates  of  royalty  or  payments 
thereunder,  or  the  assignment  of  leases,  shall  operate  to  affect  the  terms  and 
conditions  of  this  lease. 

9.  Upon  the  violation  of  any  of  the  substantial  terms  and  conditions  of 
this  lease,  the  Secretary  of  the  Interior  (or  lessor,  in  event  restrictions  are 
removed  as  provided  in  paragraph  12  hereof)  shall  have  the  right,  at  any 
time  after  thirty  days'  notice  to  the  lessee  specifying  the  terms  or  conditions 
violated,  to  declare  this  lease  null  and  void,  and  the  lessor  shall  then  be 
entitled  and  authorized  to  take  immediate  possession  of  the  land. 

10.  Before  this  lease  shall  be  in  force  and  effect  the  lessee  shall  furnish  a 
bond  with  responsible  surety  to  the  satisfaction  of  the  Secretary  of  the  In- 
terior, conditioned  for  the  performance  of  this  lease,  which  bond  shall  be 
deposited  and  remain  on  file  in  the  Indian  Office. 

11.  Assignment,  of  this  lease  or  any  interest  therein  may  be  made  with  the 
approval  of  the  Secretary  of  the  Interior,  it  being  understood  that  to  secure 
such  approval  the  proposed  assignee  need  only  be  qualified  to  hold  such  a 
lease  under  the  rules  and  regulations,  and  furnish  a  bond  with  responsible 
surety  to  the  satisfaction  of  the  Secretary  of  the  Interior,  conditioned  for 
the  faithful  performance  of  the  covenants  and  conditions  of  this  lease. 

12.  In  event  restrictions  on  alienation  shall  be  removed  from  all  leasehold 


LEASING  INDIAN  MINERAL  LANDS.  G31 


premises  described  above,  this  lease  shall  be  released  from  the  supervision  of 
the  Secretary  of  the  Interior,  such  release  to  take  effect  without  f  ree- 

meTit,  from  the  date  such  restrictions  are  removed,  tind  thereupon  the  au- 
thority and  power  delegated  to  the  Secretary  of  the  Interior  as  herein  pro- 
vided shall  cease,  and  all  payments  required  to  be  made  to  the  United  States 
Indian  agent  shall  thereafter  be  made  to  lessor  or  the  then  owner  of  said 
land  :  and  changes  in  regulations  thereafter  made  by  the  Secretary  of  the- 
Interior  applicable  to  oil  and  gas  leases  shall  not  apply  to  this  lease. 

13.  Each  and  every  clause  and  covenant  of  this  indenture  shall  extend  to- 
the  heirs,   executors,  administrators,  successors,   and  lawful   assigns  of  the 
parties  hereto. 

14.  In  witness   whereof,   the   said  parties  have  hereunto  subscribed   their 
names  and  affixed  their  seals  on  the  day  and  year  first  above  mentioned. 

Attest: 

[Seal.] 

Two  witnesses  to  execution  by  lessor:        [Seal.] 

[Seal.] 

P.  O., 


P.  O  ................................. 

Two  witnesses  to  execution  by  lessee: 


P.O.,  ............................... 

State  of  Oklahoma, 

County  of  ............  ,  ss: 

.......  .  ...................    before    me,    ........... 

in  and  for  said  county  and  State,  on  this  ......  day  of 

personally  appeared    ................................. 


to  me  known  to  be  the  identical  person. .  who  executed  the  within  and  fore- 
going lease,  and  acknowledged  to  me  that executed  the  same  as 

free  and  voluntary  act  and  deed  for  the  uses  and  purposes  therein  set  forth. 


(My  commission  expires ) 

[The  lease  must  be  accompanied  by  an  application  for  approval,  a  bond,  and 
various  affidavits,  for  which  forms  are  furnished  not  printed  here.] 

[Form  M. — For  Allottees  of  the  Five  Civilized  Tribes.] 

Transferable  only  with  Consent  of  the  Secretary  of  the  Interior. 

COAL  AND  ASPHALT  MINING  LEASE,   .....*    NATION. 

[Write  all  names  and  addresses  in  full.] 

This  indenture  of  lease  made  and  entered  into,  in  quadruplicate,  on  this 

day  of ,  A.  D.  190..,  by  and  between ,  of 

,  part. .  of  the  first  part,  and   


of   ,  part.,   of  the  second  part,  under  and  in  pursuance  of  the  pro- 


632  APPENDIX   E. 

visions  of  existing  law,  and  the  rules  and  regulations  prescribed  by  the 
Secretary  of  the  Interior  relative  to  mining  leases  covering  the  lands  of  al- 
lottees of  the  Five  Civilized  Tribes. 

Witnesseth:  That  the  part. .  of  the  first  part,  for  and  in  consideration  of 
the  royalties,  covenants,  stipulations,  and  conditions  hereinafter  contained 
and  hereby  agreed  to  be  paid,  observed,  and  performed  by  the  part. .  of  the 

second  part,    heirs,  executors,   administrators,   successors,   or  assigns, 

do  hereby  demise,  grant,  and  let  unto  the  part.,   of  the  second  part  

heirs,  executors,  administrators,  successors,  or  assigns,  the  following-describ- 
ed tract  of  land  lying  and  being  within  the Nation  and  within 

Oklahoma,  to  wit: 


of  section of  township....,  of  range ,  of  the  Indian  meridian,  and 

•containing. . .  .acres,  more  or  less,  for  the  full  term  of . . .  .years  from  the  date 
hereof,  for  the  sole  purpose  of  prospecting  for  and  mining  coal  and  asphalt ; 
the  part. .  of  the  second  part  to  occupy  so  much  only  of  the  surface  of  said 
land  as  may  be  reasonably  necessary  to  carry  on  the  work  of  prospecting  for, 
mining,  storing,  and  removing  such  coal  and  asphalt. 

In  consideration  of  the  premises  the  part. .  of  the  second  part  hereby 
agree . .  and  bind ,  heirs,  executors,  administrators,  succes- 
sors, or  assigns  to  pay,  or  cause  to  be  paid,  to  the  part. .  of  the  first  part  as 
royalties  the  sums  of  money  as  follows,  to  wit: 

On  asphaltum  the  sum  of  ten  cents  per  ton  for  each  and  every  ton  of  crude 
asphalt  produced,  weighing  2,000  pounds,  or  the  sum  of  sixty  cents  per  ton  on 
refined  asphalt.  On  the  production  of  all  coal  mined  under  this  lease  the  sum 
of  eight  cents  per  ton  of  2,000  pounds  on  mine  run,  or  coal  as  it  is  taken 
from  the  mines,  including  what  is  commonly  called  "slack." 

And  the  part. .  of  the  second  part  further  agree. .  and  bind , 

, heirs,  executors,  administrators,  successors,  or  assigns,  to  pay,  or 

cause  to  be  paid,  to  the  lessor..,  as  advanced  annual  royalty  on  this  lease, 
the  sums  of  money  as  follows,  to  wit:  Fifteen  cents  per  acre  per  annum,  in 
advance,  for  the  first  and  second  years ;  thirty  cents  per  acre  per  annum,  in 
advance,  for  the  third  and  fourth  years,  and  seventy-five  cents  per  acre  per  an- 
num, in  advance,  for  the  fifth  and  each  succeeding  year  thereafter  of  the  term 
for  which  this  lease  is  to  run,  it  being  understood  and  agreed  that  said 
sums  of  money  so  paid  shall  be  a  credit  on  the  stipulated  royalties  should 
the  same  exceed  such  sums  paid  as  advanced  royalty,  and,  further,  that 
should  the  part. .  of  the  second  part  neglect  or  refuse  to  pay  such  ad- 
vanced annual  royalty  for  the  period  of  sixty  days  after  the  same  becomes 
due  and  payable,  such  failure  or  refusal  shall  work  a  forfeiture  hereof,  and, 
after  ten  days'  notice  to  the  parties,  the  Secretary  of  the  Interior  shall  have 
authority  to  declare  such  forfeiture  and  all  royalties  paid  in  advance  shall 
become  the  money  and  property  of  the  lessor. 

All  royalty  accruing  for  any  month  shall  be  due  and  payable  on  or  before 
the  twenty-fifth  day  of  the  month  succeeding. 

It  is  agreed  by  the  parties  hereto  that  the  land  described  herein  shall  not 
be  held  by  the  part. .  of  the  second  part  for  speculative  purposes,  but  in  good 
faith  for  mining  the  minerals  specified;  and  a  failure  for  one  year  by  the 
part. .  of  the  second  part  to  do  a  reasonable  amount  of  development  work  or 
of  mining  shall  be  held  as  a  want  of  compliance  with  the  purposes  of  this 
lease  and  shall  render  it  null  and  void. 


LEASING   INDIAN    MINERAL   LANDS.  633 

The  part. .  of  the  second  part further  agree. .  and  bind 

heirs,  executors,  administrators,  successors,  or  assigns,  to  pay,  or 

cause  to  be  paid,  to  the  part. .  of  the  first  part  the  royalty  as  it  becomes  due. 

The  part.,  of  the  second  part  further  covenant.,  and  agree.,  to  ex 
diligence  in  the  conduct  of  the  prospecting  and  mining  operations 

and  to  open  mines  and  operate  the  same  in  a 

workmanlike  manner  and  to  the  fullest  possible  extent  on  the  leased  premises ; 
to  commit  no  waste  upon  said  premises  or  upon  the  mines  that  may  be 
thereon  and  to  suffer  no  waste  to  be  committed  thereon ;  to  leave  in  the  mines 
proper  pillars,  columns,  or  such  other  permanent  supports  as  will  prevent 
the  caving  or  subsidence  of  the  surface;  to  take  good  care  of  the  same  and 
to  surrender  and  return  the  premises  at  the  expiration  of  this  lease  to  the 
part. .  of  the  first  part,  or  to  whomsoever  shall  be  lawfully  entitled  thereto,  in 
as  good  condition  as  when  received,  ordinary  wear  and  tear  in  the  proper 
use  of  the  same  for  the  purposes  hereinbefore  indicated  and  unavoidable 
accidents  excepted,  and  not  to  remove  therefrom  any  buildings  or  improve- 
ments erected  thereon  during  said  term  by 

the  part. .  of  the  second  part,  but 

said  buildings  and  improvements  shall  remain  a  part  of  said  land  and  become 
the  property  of  the  owner  of  the  land  as  a  part  of  the  consideration  for  this 
lease,  in  addition  to  the  other  considerations  herein  specified,  except  engines, 
tools,  boilers,  boiler  houses,  and  machinery,  which  shall  remain  the  property  of 

said  part. .  of  the  second  part ;  that will  not  permit  any  nuisance  to  be 

maintained  on  the  premises,  nor  allow  any  intoxicating  liquors  to  be  sold  or 

given  away  for  any  purpose  on  the  premises,  and  that will  not  use  the 

premises  for  any  other  purpose  than  that  authorized  in  this  lease,  nor  allow 
them  to  be  used  for  any  other  purpose ;  that will  not  at  any  time  dur- 
ing the  term  hereby  granted  assign,  transfer,  or  sublet estate,  interest, 

or  term  in  said  premises  and  land  or  the  appurtenances  thereto  to  any  person 
or  persons  whomsoever  without  the  written  consent  thereto  of  the  part. .  of 
the  first  part  being  first  obtained,  subject  to  the  approval  of  the  Secretary  of 
the  Interior. 

And  the  said  part. .  of  the  second  part  further  covenant. .  and  agree. . 

that will  allow  said  lessor. .  and agents,  from  time  to  time,  to 

enter  upon  and  into  all  parts  of  said  premises  for  purposes  of  inspection,  and 
agree. .  to  keep  an  accurate  account  of  all  mining  operations,  showing  the 
whole  amount  of  mineral  mined  or  removed,  and  make  report  thereof  prompt- 
ly, under  oath,  at  the  end  of  each  month  to  the  lessor. .,  and  to  the  Secretary 
of  the  Interior  through  such  officer  as  he  may  designate,  and  that  all  sums 
due  as  royalty  shall  be  a  lien  on  all  implements,  tools,  movable  machinery,  and 
other  personal  chattels  used  in  said  prospecting  and  mining  operations,  and 
upon  all  the  mineral  obtained  from  the  land  herein  leased,  as  security  for 
the  payment  of  said  royalties. 

And  the  part. .  of  the  second  part  agree. .  that  this  indenture  of  lease 
shall  in  all  respects  be  subject  to  the  rules  and  regulations  heretofore  or  that 
may  hereafter  be  lawfully  prescribed  by  the  Secretary  of  the  Interior  rel- 
ative to  such  mineral  leases  covering  lands  of  allottees  of  the  Five  Civilized 
Tribes  in  Oklahoma,  and  said  part. .  of  the  second  part  expressly  agree. . 

that  should  sublessees,  heirs,  executors,  administrators,  suc- 

cpssors.  or  assigns  violate  any  of  the  covenants,  stipulations,  or  provisions  of 


634  APPENDIX    E. 

this  lease,  or  fail,  for  the  period  of  sixty  days,  to  pay  the  stipulated  monthly 
royalty  provided  for  herein,  then  the  Secretary  of  the  Interior  shall  have 
authority  in  his  discretion  to  avoid  this  indenture  of  lease  and  cause  the 
same  to  be  annulled,  when  all  the  rights,  franchises,  and  privileges  of  the 

part.,  of  the  second  part, heirs,  sublessees,  executors,  administrators, 

successors,  or  assigns  hereunder  shall  cease  and  end  without  further  proceed- 
ings. 

If  the  lessee.,  make.,  reasonable  and  bona  fide  effort  to  find  and  mine 

coal  and  asphalt  in  paying  quantity,  as  is  herein  required  of ,  and  such 

effort  is  unsuccessful, may  at  any  time  thereafter,  with  the  approval 

of  the  Secretary  of  the  Interior,  surrender  and  wholly  terminate  this  lease 
upon  the  full  payment  and  performance  of  all  then  existing  obliga- 
tions hereunder:  Provided,  however,  that  approval  of  such  surrender  by 
the  Secretary  will  be  required  only  during  the  time  his  approval  of  the 
alienation  of  the  land  is  required  by  law. 

It  is  further  agreed  and  understood  that  before  this  lease  shall  be  in  force 
and  effect  the  lessee  shall  furnish  a  satisfactory  bond  in  accordance  with  the 
regulations  prescribed  by  the  Secretary  of  the  Interior,  which  bond  shall  be 
deposited  and  remain  on  file  in  the  Indian  Office. 

It  is  expressly  understood  and  agreed  by  the  parties  hereto  that  if  the 
Secretary  of  the  Interior  is  at  any  time  satisfied  that  any  of  the  covenants 
contained  herein,  or  that  any  of  the  provisions  of  any  regulations  heretofore 
or  that  may  hereafter  be  lawfully  prescribed  by  him,  have  been  or  are  being 
violated,  he  may,  after  ten  days  notice  to  the  parties,  cancel  this  lease,  and 
that  his  declaration  of  cancellation  shall  be  effective  without  resorting  to  the 
courts  and  without  further  proceedings,  and  that  the  lessor. .  shall  be  entitled 
to  the  immediate  possession  of  the  land. 

In  witness  whereof  the  said  parties  of  the  first  and  second  part  have  here- 
unto set  their  hands  and  affixed  their  seals  the  day  and  year  first  above 
written. 

Witnesses:i 


P.  O. 
P.  O. 


as  to [Seal.] 


j*  as  to ....[Seal.] 

p.  o.! I 

p.  o... 


to [Seal.] 

P.  O. 


±  as  to [Seal.] 

p.  a.! 


iTwo  witnesses  to  all  signatures. 


LEASING   INDIAN    MINERAL   LANDS.  635 

United  States  of  America,  Indian  Territory, 

Judicial  District,  ss:* 

Be  it  remembered  that  on  this  day  came  before  me.  the  undersigned 

within  and  for  the judicial  district  of  Oklahoma  aforesaid,  duly 

commissioned  and  acting  as  such, 


to  me  personally  well  known  as the  part.  .  lessor.  .  in  the 

within  and  foregoing  lease,  and  stated  that executed  the  same  for  the 

consideration  and  purposes  therein  mentioned  and  set  forth,  and  I  do  hereby 
so  certify. 

Witness  my  hand  and  seal  as  such   on  this   day  of 

„  190... 


(My  commission  expires ) 

[Form  N.— For  Allotteees  of  the  Five  Civilized  Tribes.] 

Transferable  Only  with  Consent  of  the  Secretary  of  the  Interior. 

FOR  OTHER  MINERALS  THAN  COAL,  ASPHALT,  OIL,  AND  GAS. 

• Mining    Lease Nation. 

[Write  all  names  and  addresses  in  full.] 
This  indenture  of  lease  made  and  entered  into,  in  quadruplicate,  on  this 


day  of A.  D.  190. .,  by  and  between 


of part. .  of  the  first  part,  and  . . : 

of part. .  of  the  second  part,  under  and  in  pursuance  of  the  pro- 
visions of  existing  law,  and  the  rules  and  regulations  prescribed  by  the 
Secretary  of  the  Interior  relative  to  mining  leases  covering  the  lands  of 
allottees  of  the  Five  Civilized  Tribes. 

Witnesseth:  That  the  part.,  of  the  first  part  for  and  in  consideration  of 
the  royalties,  covenants,  stipulations,  and  conditions  hereinafter  contained 
and  hereby  agreed  to  be  paid,  observed,  and  performed  by  the  part. .  of  the 

second  part,    heirs,  executors,  administrators,  successors,  or  assigns, 

do. .  hereby  demise,  grant,  and  let  unto  the  part. .  of  the  second  part 

heirs,  executors,  administrators,  successors,  or  assigns,  the  following  described 

tract  of  land  lying  and  being  within  the Nation  and  within  the  Indian 

Territory,  to   wit: 


of  section  ....,  of  township  ....,  of  range ,  of  the  Indian  meridian,  and 

containing acres,  more  or  less,  for  the  full  term  of years  from 

"This  should  now  be: 
State  of  Oklahoma, 

County  of ,  ss : 


636  APPENDIX   E. 

the  date  hereof,  for  the  sole  purpose  of  prospecting  for  and  mining  minerals, 
as    follows:  •••• 


the  part.  .  of  the  second  part  to  occupy  so  much  only  of  the  surface  of  said 
land  as  may  be  reasonably  necessary  to  carry  on  the  work  of  prospecting  for, 
mining,  storing,  and  removing  such  minerals. 

In  consideration  of  the  premises,  the  part. .  of  the  second  part  hereby 
agree. .  and  bind  ,  heirs,  executors,  administrators,  suc- 
cessors, or  assigns,  to  pay,  or  cause  to  be  paid,  to  the  part. .  of  the  first  part, 
as  royalties,  the  sums  of  money  as  follows,  to  wit: 


And  the  part. .  of  the  second  part  further  agree. .  and  bind , 

heirs,  executors,  administrators,  successors,  or  assigns,  to  pay,  or  cause 

to  be  paid,  to  the  lessor. .,  as  advanced  annual  royalty  on  this  lease,  the  sums 

of  money,  as  follows,  to  wit: per  acre  per  annum,  in  advance,  for 

the  first  and  second  years; per  acre  per  annum,  in  advance,  for  the 

third  and  fourth  years ;  and per  acre  per  annum,  in  advance,  for 

the  fifth  and  each  succeeding  year  thereafter  of  the  term  for  which  this 
lease  is  to  run;  it  being  understood  and  agreed  that  said  sums  of  money  so 
paid  shall  be  a  credit  on  the  stipulated  royalties  should  the  same  exceed  such 
sums  paid  as  advanced  royalty;  and  further,  that  should  the  part.,  of  the 
second  part  neglect  or  refuse  to  pay  such  advanced  annual  royalty  for  the 
period  of  sixty  days  after  the  same  becomes  due  and  payable,  the  Secretary 
of  the  Interior,  after  ten  days'  notice  to  the  parties  thereto,  may  declare  this 
lease  null  and  void,  and  all  royalties  paid  in  advance  shall  become  the  money 
and  the  property  of  the  lessor. .. 

All  royalty  accruing  for  any  month  shall  be  due  and  payable  on  or  before 
the  twenty-fifth  day  of  the  month  succeeding. 

It  is  agreed  by  the  parties  hereto  that  the  land  described  herein  shall  not 
be  held  by  the  part. .  of  the  second  -part  for  speculative  purposes,  but  in 
good  faith  for  mining  the  minerals  specified ;  and  a  failure  for  one  year  by 
the  part. .  of  the  second  part  to  do  a  reasonable  amount  of  development  work 
or  of  mining  shall  be  held  as  a  want  of  compliance  with  the  purposes  of  this 
lease  and  shall  render  it  null  and  void. 

The  part. .  of  the  second  part  further  agree. .  and  bind  , 

heirs,  executors,  administrators,  successors,  or  assigns  to  pay,  or  cause 

to  be  paid,  to  the  part. .  of  the  first  part  the  royalty  as  it  becomes  due. 

The  part.,  of  the  second  part  further  covenant.,  and  agree.,  to  exercise 
diligence  in  the  conduct  of  the  prospecting  and  mining  operations,  and  to 
open  mines  and  operate  the  same  in  a  workmanlike  manner  and  to  the  fullest 
possible  extent  on  the  leased  premises ;  to  commit  no  waste  upon  said  prem- 
ises, or  upon  the  mines  that  may  be  thereon,  and  to  suffer  no  waste  to  be 
committed  thereon ;  to  leave  in  the  mines  proper  pillars,  columns,  or  such 
other  permanent  supports  to  prevent  the  caving  or  subsidence  of  the  surface; 
to  take  good  care  of  the  same,  and  to  surrender  and  return  the  premises  at 
the  expiration  of  this  lease  to  the  part. .  of  the  first  part,  or  to  whomsoever 
shall  be  lawfully  entitled  thereto,  in  as  good  condition  as  when  received,  ordi- 
nary wear  and  tear  in  the  proper  use  of  the  same  for  the  purposes  herein- 
before indicated  »nd  unavoidable  accidents  excepted,  and  not  to  remove 


LEASING   INDIAN   MINERAL   LANDS.  637 

therefrom  any  buildiugs  or  improvements  erected  thereon  during  said  term 
by  

the  part. .  of  the  second  part,  but  said  buildings  and  improvements  shall  re- 
main a  part  of  said  him1  and  become  the  property  of  the  owner  of  the  land 
as  a  part  of  the  consideration  for  this  lease,  in  addition  to  the  other  consid- 
erations herein  specified,  except  engines,  tools,  boilers,  boiler  houses,  and  ma- 
chinery, which  shall  remain  the  property  of  said  part.,  of  the  second  part: 

that  will  not  permit  any  nuisance  to  be  maintained  on  the  premises, 

nor  allow  any  intoxicating  liquors  to  be  sold  or  given  away  for  any  purpose 
on  the  premises,  and  that will  not  use  the  premises  for  any  other  pur- 
pose than  that  authorized  In  this  lease,  nor  allow  them  to  be  used  for  any 
other  purpose ;  that will  not  at  any  time  during  the  term  hereby  grant- 
ed assign,  transfer,  or  sublet estate,  interest,  or  term  in  said  premises 

and  land,  or  the  appurtenances  thereto,  to  any  person  or  persons  whomsoever 
without  the  consent  and  approval  of  the  Secretary  of  the  Interior. 

And  the  said  part.,  of  the  second  part  further  covenant.,  and  agree.. 

that will  allow  said  lessor. .  and agents,  from  time  to  time,  to 

enter  upon  and  into  all  parts  of  said  premises  for  purposes  of  inspection, 
and  agree. .  to  keep  an  accurate  account  of  all  mining  operations,  showing 
the  whole  amount  of  mineral  mined  or  removed,  and  make  report  thereof 
promptly,  under  oath,  at  the  end  of  each  month  to  the  lessor. .  and  to  the 
Secretary  of  the  Interior,  through  such  officer  as  he  may  designate,  and  that 
all  sums  due  as  royalty  shall  be  a  lien  on  all  implements,  tools,  movable  ma- 
chinery, and  other  personal  chattels  used  in  said  prospecting  and  mining 
operations,  and  upon  all  the  mineral  obtained  from  the  land  herein  leased,  as 
security  "for  the  payment  of  said  royalties. 

And  the  parties  hereto  expressly  agree  that, this  indenture  of  lease  shall  in 
all  respects  be  subject  to  the  rules  and  regulations  heretofore  or  that  may 
hereafter  be  lawfully  prescribed  by  the  Secretary  of  the  Interior  relative  to 
leases  covering  lands  of  allottees  of  the  Five  Civilized  Tribes;  and  said 
part. .  of  the  second  part  expressly  agree. .  that  should sub- 
lessees,   heirs,  executors,  administrators,  successors,  or  assigns  violate 

any  of  the  covenants,  stipulations,  or  provisions  of  this  lease,  or  fail  for  the 
period  of  sixty  days  to  pay  tfie  stipulated  monthly  royalty  provided  for  herein, 
the  Secretary  of  the  Interior,  after  ten  days'  notice  to  the  parties  hereto,  shall 

be  at  liberty,  In discretion,  to  cancel  and  annul  this  lease,  when  all  the 

rights,  franchises,  and  privileges  of  the  part. .  of  the  second  part 

sublessees,  executors,  administrators,  successors,  or  assigns  hereunder  shall 
cease  and  end  without  further  proceedings. 

If  the  lessee.,  make.,  reasonable  and  bona  fide  effort  to  find  and  mine 

in  paying  quantity,  as  is  herein  required  of ,  and  such  effort 

Is  unsuccessful, may  at  any  time  thereafter,  with  the  approval  of  the 

Secretary  of  the  Interior,  surrender  and  wholly  terminate  this  lease  upon  the 
full  payment  and  performance  of  all  then  existing  obligations  here- 
under: Provided,  however,  that  approval  of  such  surrender  by  the  Secretary 
will  be  required  only  during  the  time  his  approval  of  the  alienation  of  the 
land  is  required  by  law. 

It  is  further  agreed  and  understood  that  before  this  lease  shall  be  in  force 
and  effect  the  lessee  shall  furnish  a  satisfactory  bond  in  accordance  with  the 
regulations  prescribed  by  the  Secretary  of  the  Interior. 

It  is  expressly  understood  and  agreed  by  the  parties  hereto  that  if  the 


638  APPENDIX    B. 

Secretary  of  the  Interior  is  at  any  time  satisfied  that  any  of  the  covenants 
contained  herein  or  that  any  of  the  provisions  of  any  regulations  heretofore 
or  that  may  hereafter  be  lawfully  prescribed  by  him,  have  been  or  are  being 
violated,  he  may,  after  ten  days'  notice  to  the  parties,  cancel  this  lease,  and 
that  his  declaration  of  cancellation  shall  be  effective  without  resorting  to 
the  courts  and  without  further  proceedings,  and  that  the  lessor. .  shall  then 
be  entitled  to  the  immediate  possession  of  the  land. 

In  witness  whereof  the  said  parties  of  the  first  and  second  parts  have 
hereunto  set  their  hands  and  affixed  their  seals  the  day  and  year  first  above 
written. 

Witnesses:* 


1    as  to [Seal.] 

P.  O. 

P.  O. 


as  to [Seal.] 

P.  O. 


P.  O 
P.  O 

P.  O 


to [Seal.] 


as  to [Seal.] 

P.  O. 

United  States  of  America,  Indian  Territory, 

Judicial  District,  ss :  * 

Be  it  remembered  that  on  this  day  came  before  me,  the  undersigned 

within  and  for  the   judicial  district  of  the  Indian  Territory 

aforesaid,  duly  commissioned  and  acting  as  such, 


to  me  personally  known  as the  part. .  lessor. .  in  the  within 

and  foregoing  lease,  and  stated  that executed  the  same  for  the  con- 
sideration and  purposes  therein  mentioned  and  set  forth,  and  I  do  hereby 
so  certify. 

Witness  my  hand  and  seal  as  such on  this day  of 

,  190... 


(My  commission  expires 


1  Two  witnesses  to  all  signatures. 
*This  should  now  be : 
State  of  Oklahoma, 

County  of 


LEASING    INDIAN    MINERAL   LANDS.  639 

REGULATIONS  OF  JUNE  20,  1908. 


By  an  act  of  Congress,  approved  May  27,  1908,  providing  for  the  removal 
of  restrictions  from  some  of  the  lands  of  the  Five  Civilized  Tribes,  certain 
changes  in  the  regulations  applying  to  those  tribes  were  necessitated,  and 
they  were  made  by  the  regulations  of  June  20,  1908.  The  regulations  relating 
to  mineral  lands  were  as  follows: 


REGULATIONS. 

The  following  regulations  are  hereby  prescribed  for  the  purpose  of  carrying 
into  effect  those  provisions  of  the  Act  of  Congress  approved  May  27,  1908  [Act 
May  27,  1908,  c.  199  (35  Stat.  312)] : 

************ 


LEASING. 

9.  Sections  1  to  43,  inclusive,  of  the  Revised  Regulations  of  April  20,  1908, 
governing  the  leasing  of  allotted  lands  of   members  of  the  Five  Civilized 
Tribes,  with  reference  to  oil,  gas  or  other  mineral  leases  are,  with  the  fol- 
lowing modifications,  hereby  repromulgated  under  and  in  accordance  with  and 
made  applicable  to  the  provisions  of  [sections  2,  3,  and  11  of]  said  act,  and 
shall,  with  said  modifications,  remain  in  full  force  and  effect 

************ 

10.  To  expedite  necessary  investigation  and  final  action  leases  should  here- 
after be  presented  to  the  district  agent  of  the  district  in  which  the  leased 
land  is  situate  for  transmission  to  the  Indian  agent  at  Union  Agency. 

11.  No  mineral  lease  which  covers  the  land  of  a  minor  allottee  and  re- 
quires the  approval  of  the  Secretary  of  the  Interior  shall  be  for  a  term  ex- 
tending beyond  the  minority  of  such  minor  unless  the  court  having  jurisdic- 
tion of  the  minor's  estate  and  the  Secretary  of  the  Interior  shall  approve  such 
lease. 

12.  With  the  approval  of  the  proper  court  and  the  Secretary  of  the  Interior, 
mineral  leases  covering  land  of  minor  allottees  made  and  approved  upon  forms 
authorized  prior  to  the  revised  regulations  of  April  20,  1908,  may  be  modified 
to  give  to  the  parties  thereto  any  or  all  of  the  rights,  privileges,  conditions 
or  terms  of  the  lease  form  approved  April  20,  1908. 

13.  From  and  after  July  1,  1908,  mineral  leases  which  require  the  approval 
of  the  Secretary  of  the  Interior  covering  Innds  of  Seminole  allottees,  as  pro- 
vided in  section  11  of  the  act  of  May  27,  1908,  shall  be  made  under  these  regu- 
lations without  the  approval  of  the  tribal  authorities. 

14.  Section  10  of  the  regulations  of  April  20,  1908,  is  amended  to  read  as 
follows : 

"Lessees  must  procure  and  file  with  each  lease  an  affidavit  of  the  Indian 
lessor,  made  before  the  district  agent,  United  States  Indian  agent,  Union 
Agency,  if  possible,  or  if  not,  before  a  federal  judge,  clerk  of  the  federal  court, 
United  States  commissioner  or  county  or  district  judge,  showing  that  the 


(MO  APPENDIX   E. 

lease  was  understood  by  the  lessor,  and  bonus  agreements,  If  any.  (See  form 
D  prescribed,  which  also  covers  lessee's  affidavit  of  bonus  and  nondevelop- 
ment.)" 

************ 

C.  P.  Larrabee, 

Acting  Commissioner  of  Indian  Affairs. 
Department  of  the  Interior, 

June  20,  1908. 
Approved: 

Jesse  E.  Wilson, 

Assistant  Secretary. 


APPENDIX  F. 

PHILIPPINE  MINING  LAWS. 


(From  the  Compilation  of  Laws  and  Regulations  Relating  to  Public  Lands  in 
the  Philippine  Islands,  Issued  by  the  War  Department,  Bureau  of  In- 
sular Affairs,  February  1,  1908.) 


ACTS  OF  CONGRESS  AND  THE  PHILIPPINE  COMMISSION. 

CONGRESSIONAL  LEGISLATION. 

The  act  of  Congress  approved  July  1,  1902,  entitled  "An  act  temporarily 
to  provide  for  the  administration  of  the  affairs  of  civil  government  in  the 
Philippine  Islands,  and  for  other  purposes,"  granted  authority  to  the  Philip- 
pine Commission  to  dispose  of  the  public  domain  under  the  conditions  set 
forth  therein.  The  above  act  was  amended  in  certain  sections  by  the  act  of 
February  6,  1905,  which  changed  the  original  measurements  from  acres,  feet, 
etc.,  to  the  metric  system  of  measurements,  and  the  law  as  printed  here- 
with includes  all  the  legislation  by  Congress  relative  to  the  lands  of  the 
Philippine  Islands  at  present  in  force. 

All  the  acts  and  regulations  of  the  Philippine  Commission  are  based  upon 
these  two  acts  of  Congress. 

[Public— No.  235.] 

An  Act  temporarily  to  provide  for  the  administration  of  the  affairs  of  civil 
government  in  the  Philippine  Islands,  and  for  other  purposes,  approved 
July  1,  1902,  as  amended  by  Public — No.  43,  approved  February  6,  1905. 


MINEBAL  LANDS. 

Sec.  20.  That  in  all  cases  public  lands  in  the  Philippine  Islands  valuable 
for  minerals  shall  be  reserved  from  sale,  except  as  otherwsie  expressly  directed 
by  law. 

Sec.  21.  That  all  valuable  mineral  deposits  in  public  lands  in  the  Philip- 
pine Islands,  both  surveyed  and  unsurveyed,  are  hereby  declared  to  be  free 
and  open  to  exploration,  occupation,  and  purchase,  and  the  land  in  which 
they  are  found  to  occupation  and  purchase,  by  citizens  of  the  United  States, 
or  of  said  Islands:  Provided,  That  when  on  any  lands  in  said  Islands  en- 
tered and  occupied  as  agricultural  lands  under  the  provisions  of  this  Act,  but 

COST.MIN.L.-41  (641) 


642  APPENDIX   F. 

not  patented,  mineral  deposits  have  been  found,  the  working  of  such  mineral 
deposits  is  hereby  forbidden  until  the  person,  association,  or  corporation 
who  or  which  has  entered  and  is  occupying  such  lands  shall  have  paid  to 
the  Government  of  said  Islands  such  additional  sum  or  sums  as  will  make 
the  total  amount  paid  for  the  mineral  claim  or  claims  in  which  said  de- 
posits are  located  equal  to  the  amount  charged  by  the  Government  for  the 
same  as  mineral  claims. 

Sec.  22.  (As  amended  by  act  of  Congress  approved  February  6,  1005.) 
That  mining  claims  upon  land  containing  veins  or  lodes  of  quartz  or  other 
rock  in  place  bearing  gold,  silver,  cinnabar,  lead,  tin,  copper,  or  other  valu- 
able deposits  located  after  the  passage  of  this  Act,  whether  located  by  one 
or  more  persons  qualified  to  locate  the  same  under  the  preceding  section,  shall 
be  located  in  the  following  manner  and  under  the  following  conditions:  Any 
person  so  qualified  desiring  to  locate  a  mineral  claim  shall,  subject  to  the 
provisions  of  this  Act  with  respect  to  land  which  may  be  used  for  mining, 
enter  upon  the  same  and  locate  a  plat  of  ground  measuring,  where  possible, 
but  not  exceeding  three  hundred  meters  in  length  by  three  hundred  meters 
in  breath,  in  as  nearly  as  possible  a  rectangular  form — that  is  to  say,  all 
angles  shall  be  right  angles,  except  in  cases  where  a  boundary  line  of  a  pre- 
viously surveyed  claim  is  adopted  as  common  to  both  claims,  but  the  lines 
need  not  necessarily  be  meridional.  In  defining  the  size  of  a  mineral  claim  it 
shall  be  measured  horizontally,  irrespective  of  inequalities  of  the  surface  of 
the  ground. 

Sec.  23.  (As  amended  by  act  of  Congress  approved  February  6,  1905.)' 
That  a  mineral  claim  shall  be  marked  by  two  posts,  placed  as  nearly  as  pos- 
sible on  the  line  of  the  ledge  or  vein,  and  the  posts  shall  be  numbered  one 
and  two,  and  the  distance  between  posts  numbered  one  and  two  shall  not 
exceed  three  hundred  meters,  the  line  between  posts  numbered  one  and  two 
to  be  known  as  the  location  line;  and  upon  posts  numbered  one  and  two  shall 
be  written  the  name  given  to  the  mineral  claim,  the  name  of  the  locator,  and 
the  date  of  the  location.  Upon  post  numbered  one  there  shall  be  written,  in 
addition  to  the  foregoing,  "Initial  post,"  the  approximate  compass  bearing 
of  post  numbered  two,  and  a  statement  of  the  number  of  meters  lying  to  the 
right  and  to  the  left  of  the  line  from  post  numbered  one  to  post  numbered 
two,  thus  "Initial  post.  Direction  of  post  numbered  two  .  meters  of 

this  claim  lie  on  the  right  and  meters  on  the  left  of  the  line  from  number 
one  to  number  two  post."  All  the  particulars  required  to  be  put  on  number  one 
and  number  two  posts  shall  be  furnished  by  the  locator  to  the  provincial 
secretary,  or  such  other  officer  as  by  the  Philippine  Government  may  be  de- 
scribed as  mining  recorder,  in  writing,  at  the  time  the  claim  is  recorded,  and 
shall  form  a  part  of  the  record  of  such  claim. 

Sec.  24.  (As  amended  by  act  of  Congress  approved  February  6, 1905.)  That 
when  a  claim  has  been  located  the  holder  shall  immediately  mark  the  line 
between  posts  numbered  one  and  two  so  that  it  can  be  distinctly  seen.  The 
locator  shall  also  place  a  post  at  the  point  where  he  has  found  minerals  in 
place,  on  which  shall  be  written  "Discovery  post:"  Provided,  That  when  the 
claim  is  surveyed  the  surveyor  shall  be  guided  by  the  records  of  the  claim, 
the  sketch  plan  on  the  back  of  the  declaration  made  by  the  owner  when  the 
claim  was  recorded,  posts  numbered  one  and  two,  and  the  notice  on  number 
one,  the  initial  post 


PHILIPPINE    MINING   LAWS. 


Examples  of  Various  Modes  of  Laying  Out  Claims. 

i.  2.  3. 

No.  2  post.  No.  2  post 

100m. 


lOOra. 


No.  2  post 

150  meters. 

150m. 

3 
1 

Discovery 
post.     < 

0 

>             i 

150m. 
( 

isom. 

•X 

""             200m. 

225m, 

75  m. 

)  Discovery  post,    g 

B 
1 

B 

1 

Discovery  post.  ( 

) 

200m. 

225m. 

< 

75m. 

3  • 

No.  1  post. 


No.  1  post. 


No.  1  post. 


Xote. — See  section  8  of  Act  No.  624  of  the  Philippine  Commission,  which 
requires  corner  posts  in  addition  to  above. 

Sec.  25.  (As  amended  by  act  of  Congress  approved  February  6,1905.)  That 
it  shall  not  be  lawful  to  move  number  one  post,  but  number  two  post  may  be 
moved  by  the  deputy  mineral  surveyor  when  the  distance  between  posts  num- 
bered one  and  two  exceeds  three  hundred  meters,  in  order  to  place  number 
two  post  three  hundred  meters  from  number  one  post  on  the  line  of  location. 
When  the  distance  between  posts  numbered  one  and  two  is  less  than  three 
hundred  meters,  the  deputy  mineral  surveyor  shall  have  no  authority  to  ex- 
tend the  claim  beyond  number  two. 

Sec.  26.  That  the  "location  line"  shall  govern  the  direction  of  one  side 
of  the  claim,  upon  which  the  survey  shall  be  extended  according  to  this  Act. 

Sec.  27.  That  the  holder  of  a  mineral  claim  shall  be  entitled  to  all  min- 
erals which  may  lie  within  his  claim,  but  he  shall  not  be  entitled  to  mine  out- 
side the  boundary  lines  of  his  claim  continued  vertically  downward:  Pro- 
vided, That  this  Act  shall  not  prejudice  the  rights  of  claim  owners  nor  claim 
holders  whose  claims  have  been  located  under  existing  laws  prior  to  this  Act. 

Sec.  28.  That  no  mineral  claim  of  the  full  size  shall  be  recorded  without 
the  application  being  accompanied  by  an  affidavit  made  by  the  applicant  or 
some  person  on  his  behalf  cognizant  of  the  facts — that  the  legal  notices  and 
posts  have  been  put  up;  that  mineral  has  been  found  in  place  on  the  claim 
proposed  to  be  recorded ;  that  the  ground  applied  for  is  unoccupied  by  any 
other  person.  In  the  said  declaration  shall  be  set  out  the  name  of  the  ap- 
plicant and  the  date  of  the  location  of  the  claim.  The  words  written  on  the 
number  one  and  number  two  posts  shall  be  set  out  in  full,  and  as  accurate  a 
description  as  possible  of  the  position  of  the  claim  given  with  reference  to 
some  natural  object  or  permanent  monuments. 

Sec.  29.  (As  amended  by  act  of  Congress  approved  February  6, 1905.)  That 
no  mineral  claim  which  at  the  date  of  its  record,  is  known  by  the  locator  to 
be  less  than  a  full-sized  mineral  claim,  shall  be  recorded  without  the  word 
"fraction"  being  added  to  the  name  of  the  claim,  and  the  application  being 
accompanied  by  an  affidavit  or  solemn  declaration  made  by  the  applicant 
or  some  person  on  his  behalf  cognizant  of  the  facts:  That  the  legal  posts 
and  notices  have  been  put  up;  that  mineral  has  been  found  in  place  on  the 


644  APPENDIX   P. 

fractional  claim  proposed  to  be  recorded;  that  the  ground  applied  for  is  un- 
occupied by  any  other  person.  In  the  said  declaration  shall  be  set  out  the 
name  of  the  applicant  and  the  date  of  the  location  of  the  claim.  The  words 
written  on  the  posts  numbered  one  and  two  shall  be  set  out  in  full,  and  as 
accurate  a  description  as  possible  of  the  position  of  the  claim  given.  A 
sketch  plan  shall  be  drawn  by  the  applicant  on  the  back  of  the  declaration, 
showing  as  near  as  may  be  the  position  of  the  adjoining  mineral  claims  and 
the  shape  and  size,  expressed  in  meters,  of  the  claim  or  fraction  desired  to 
be  recorded:  Provided,  That  the  failure  on  the  part  of  the  locator  of  a  min- 
eral claim  to  comply  with  any  of  the  foregoing  provisions  of  this  section 
shall  not  be  deemed  to  invalidate  such  location  if,  upon  the  facts,  it  shall 
appear  that  such  locator  has  actually  discovered  mineral  in  place  on  said  loca- 
tion and  that  there  has  been  on  his  part  a  bona  fide  attempt  to  comply  with 
the  provisions  of  this  Act,  and  that  the  nonobservance  of  the  formalities  here- 
inbefore referred  to  is  not  of  a  character  calculated  to  mislead  other  persons 
desiring  to  locate  claims  in  the  vicinity. 

Sec.  30.  That  in  cases  where,  from  the  nature  or  shape  of  the  ground,  it 
is  impossible  to  mark  the  location  line  of  the  claim  as  provided  by  this  Act 
then  the  claim  may  be  marked  by  placing  posts  as  nearly  as  possible  to  the 
location  line,  and  noting  the  distance  and  direction  such  posts  may  be  from 
such  location  line,  which  distance  and  direction  shall  be  set  out  in  the  record 
of  the  claim. 

Sec.  31.  (As  amended  by  act  of  Congress  approved  February  6, 1905.)  That 
every  person  locating  a  mineral  claim  shall  record  the  same  with  the  pro- 
vincial secretary,  or  such  other  officer  as  by  the  Government  of  the  Philip- 
pine Islands  may  be  described  as  mining  recorder  of  the  district  within  which 
the  same  is  situate,  within  thirty  days  after  the  location  thereof.  Such  record 
shall  be  made  in  a  book  to  be  kept  for  the  purpose  in  the  office  of  the  said 
provincial  secretary  or  such  other  officer  as  by  said  Government  described  as 
mining  recorder,  in  which  shall  be  inserted  the  name  of  the  claim,  the  name 
of  each  in  meters,  the  date  of  location,  and  the  date  of  the  record.  A  claim 
which  shall  not  have  been  recorded  within  the  prescribed  period  shall  be 
deemed  to  have  been  abandoned. 

Sec.  32.  That  in  case  of  any  dispute  as  to  the  location  of  a  mineral  claim 
the  title  to  the  claim  shall  be  recognized  according  to  the  priority  of  such 
location,  subject  to  any  question  as  to  the  validity  of  the  record  itself  and 
subject  to  the  holder  having  complied  with  all  the  terms  and  conditions  of 
this  Act. 

Sec.  33.  That  no  holder  shall  be  entitled  to  hold  in  his,  its,  or  their  own 
name  or  in  the  name  of  any  other  person,  corporation,  or  association  more 
than  one  mineral  claim  on  the  same  vein  or  lode. 

Sec.  34.  That  a  holder  may  at  any  time  abandon  any  mineral  claim  by  giv- 
ing notice,  in  writing,  of  such  intention  to  abandon,  to  the  provincial  secretary 
or  such  other  officer  as  by  the  Government  of  the  Philippine  Islands  may 
be  described  as  mining  recorder;  and  from  the  date  of  the  record  of  such 
notice  all  his  interest  in  such  claim  shall  cease. 

Sec.  35.  That  proof  of  citizenship  under  the  clause  of  this  Act  relating 
to  mineral  lands  may  consist  in  the  case  of  an  individual,  of  his  own  affida- 
vit thereof;  in  the  case  of  an  association  of  persons  unincorporated,  of  the 
affidavit  of  their  authorized  agent,  made  on  his  own  knowledge  or  upon  in- 
formation and  belief;  and  in  case  of  a  corporation  organized  under  the  laws 
of  the  United  States,  or  of  any  State  or  Territory  thereof,  or  of  the  Philippine 


PHILIPPINE   MINING    LAWS.  645 

Islands,  by  the  filing  of  a  certified  copy  of  their  charter  or  certificate  of  in- 
corporation. 

Sec.  36.    (As  amended  by  act  of  Congress  approved  February  6,  1905.)    That 
the  United  States  Philippine  Commission  or  its  successors  may  make  regula- 
tions, not  in  conflict  with  the  provisions  of  this  Act,  governipg  the  loctr 
manner  of  recording,  and  amount  of  work  necessary  to  hold  possession  of  a 
mining  claim,  subject  to  the  following  requirements: 

On  each  claim  located  after  the  passage  of  this  Act,  and  until  a  patent  has 
been  issued  therefor,  not  less  than  two  hundred  pesos'  worth  of  labor  shall 
be  performed  or  improvements  made  during  each  year:  Provided,  That  upon 
a  failure  to  comply  with  these  conditions  the  claim  or  mine  upon  which  such 
failure  occurred  shall  be  open  to  relocation  in  the  same  manner  as  if  no  loca- 
tion of  the  same  had  ever  been  made,  provided  that  the  original  locators, 
their  heirs,  assigns,  or  legal  representatives  have  not  resumed  work  upon  the 
claim  after  failure  and  before'  such  location.  Upon  the  failure  of  any  one 
of  several  co-owners  to  contribute  his  proportion  of  the  expenditures  required 
thereby,  the  co-owners  who  have  performed  the  labor  or  made  the  improve- 
ments may,  at  the  expiration  of  the  year,  give  such  delinquent  co-owners  per- 
sonal notice  in  writing,  or  notice  by  publication  in  the  newspaper  published 
nearest  the  claim,  and  in  two  newspapers  published  at  Manila,  one  in  the 
English  language  and  the  other  in  the  Spanish  language,  to  be  designated  by 
the  Chief  of  the  Philippine  Insular  Bureau  of  Public  Lands,  for  at  least 
once  a  week  for  ninety  days;  and  if,  at  the  expiration  of  ninety  days  after 
such  notice  in  writing  or  by  publication,  such  delinquent  shall  fail  or  refuse 
to  contribute  his  proportion  of  the  expenditure  required  by  this  section,  his 
interest  in  the  claim  shall  become  the  property  of  his  co-owners  who  have 
made  the  required  expenditures.  The  period  within  which  the  work  required 
to  be  done  annually  on  all  unpatented  mineral  claims  shall  commence  on  the 
first  day  of  January  succeeding  the  date  of  location  of  such  claim. 

Sec.  37.  (As  amended  by  act  of  Congress  approved  February  6, 1905.)  That 
a  patent  for  any  land  claimed  and  located  for  valuable  mineral  deposits  may 
be  obtained  in  the  following  manner:  Any  person,  association,  or  corporation 
authorized  to  locate  a  claim  under  this  Act,  having  claimed  and  located  a 
piece  of  land  for  such  purposes,  who  has  or  have  complied  with  the  terms  of 
this  Act,  may  file  in  the  office  of  the  provincial  secretary,  or  such  other  of- 
ficer as  by  the  Government  of  said  Islands  may  be  described  as  mining  record- 
er of  the  province  wherein  the  land  claimed  is  located,  an  application  for  a 
patent,  under  oath,  showing  such  compliance,  together  with  a  plat  and  field 
notes  of  the  claim  or  claims  in  common,  made  by  or  under  the  direction  of 
the  Chief  of  the  Philippine  Insular  Bureau  of  Public  Lands,  showing  ac- 
curately the  boundaries  of  the  claim,  which  shall  be  distinctly  marked  by 
monuments  on  the  ground,  and  shall  post  a  copy  of  such  plat,  together  with 
a  notice  of  such  application  for  a  patent,  in  a  conspicuous  place  on  the  land 
embraced  in  such  plat  previous  to  the  filing  of  the  application  for  a  patent, 
and  shall  file  an  affidavit  of  at  least  two  persons  that  such  notice  has  been 
duly  posted,  and  shall  file  a  copy  of  the  notice  in  such  office,  and  shall  there- 
upon be  entitled  to  a  patent  for  the  land,  in  the  manner  following:  The 
provincial  secretary,  or  such  other  officer  as  by  the  Philippine  Government 
may  be  described  as  mining  recorder,  upon  the  filing  of  such  application, 
plat,  field  notes,  notices,  and  affidavits,  shall  publish  a  notice  that  such  an 
application  has  been  made,  once  a  week  for  the  period  of  sixty  days,  in  a 
newspaper  to  be  by  him  designated  as  nearest  to  such  claim,  and  in  two 


646  APPENDIX   F. 

newspapers  published  at  Manila,  one  in  the  English  language  and  one  in  the 
Spanish  language,  to  be  designated  by  the  Chief  of  the  Philippine  Insular 
Bureau  of  Public  Lands;  and  he  shall  also  post  such  notice  in  his  office  for 
the  same  period.  The  claimant  at  the  time  of  filing  this  application,  or  at 
any  time  thereafter  within  the  sixty  days  of  publication,  shall  file  with  the 
provincial  secretary,  or  such  other  officer  as  by  the  Philippine  Government 
may  be  described  as  mining  recorder,  a  certificate  of  the  Chief  of  the  Philip- 
pine Insular  Bureau  of  Public  Lands  that  one  thousand  pesos'  worth  of 
labor  has  been  expended  or  improvements  made  upon  the  claim  by  himself 
or  grantors;  that  the  plat  is  correct,  with  such  further  description  by  such 
reference  to  natural  objects  or  permanent  monuments  as  shall  identify  the 
claim,  and  furnish  an  accurate  description  fo  be  incorporated  in  the  patent. 
At  the  expiration  of  the  sixty  days  of  publication  the  claimant  shall  file  his 
affidavit,  showing  that  the  plat  and  notice  have  been  posted  in  a  conspicuous 
place  on  the  claim  during  such  period  of  publication.  If  no  adverse  claim 
shall  have  been  filed  with  the  provincial  secretary,  or  such  other  officer,  as 
by  the  Government  of  said  Islands  may  be  described  as  mining  recorder,  at 
the  expiration  of  the  sixty  days  of  publication,  it  shall  be  assumed  that  the 
applicant  is  entitled  to  a  patent  upon  the  payment  to  the  provincial  treasur- 
er, or  the  collector  of  internal  revenue,  of  twenty-five  pesos  per  hectare,  and 
that  no  adverse  claim  exists ;  and  thereafter  no  objection  from  third  parties 
to  the  issuance  of  a  patent  shall  be  heard,  except  it  be  shown  that  the  appli- 
cant has  failed  to  comply  with  the  terms  of  this  Act:  Provided,  That  where 
the  claimant  for  a  patent  is  not  a  resident  of  or  within  the  province  wherein 
the  land  containing  the  vein,  ledge,  or  deposit  sought  to  be  patented  is  lo- 
cated, the  application  for  patent  and  the  affidavits  required  to  be  made  in 
this  section  by  the  claimant  for  such  patent  may  be  made  by  his,  her,  or  its 
authorized  agent  where  said  agent  is  conversant  with  the  facts  sought  to 
be  established  by  said  affidavits. 

Sec.  38.  That  applicants  for  mineral  patents,  if  residing  beyond  the  limits 
of  the  province  or  military  department  wherein  the  claim  is  situated,  may 
make  the  oath  or  affidavit  required  for  proof  of  citizenship  before  the  clerk 
of  any  court  of  record,  or  before  any  notary  public  of  any  province  of  the 
Philippine  Islands,  or  any  other  official  in  said  Islands  authorized  by  law  to 
administer  oaths. 

Sec.  39.  (As  amended,  by  act  of  Congress  approved  February  6,  1905.)  That 
where  an  adverse  claim  is  filed  during  the  period  of  publication  it  shall  be 
upon  oath  of  the  person  or  persons  making  the  same,  and  shall  show  the 
nature,  boundaries,  and  extent  of  such  adverse  claim,  and  all  proceedings,  ex- 
cept the  publication  of  notice  and  making  and  filing  of  the  affidavits  thereof, 
shall  be  stayed  until  the  controversy  shall  have  been  settled  or  decided  by  a 
court  of  competent  jurisdiction  or  the  adverse  claim  waived.  It  shall  be  the 
duty  of  the  adverse  claimant,  within  thirty  days  after  filing  his  claim,  to  com- 
mence proceedings  in  a  court  of  competent  jurisdiction  to  determine  the  ques- 
tion of  the  right  of  possession  and  prosecute  the  same  with  reasonable  diligence 
to  final  judgment,  and  a  failure  so  to  do  shall  be  a  waiver  of  his  adverse  claim. 
After  such  judgment  shall  have  been  rendered  the  party  entitled  to  the  posses- 
sion of  the  claim,  or  any  portion  thereof,  may,  without  giving  further  notice, 
file  a  certified 'copy  of  the  judgment  roll  with  the  provincial  secretary,  or  such 
other  officer  as  by  the  Government  of  the  Philippine  Islands  may  be  described 
as  mining  recorder,  together  with  the  certificate  of  the  Chief  of  the  Philippine 
Insular  Bureau  of  Public  Lands  that  the  requisite  amount  of  labor  has  been 
expended  or  improvements  made  thereon,  and  the  description  required  in  other 


PHILIPPINE    MINING   LAWS.  C47 

cases,  and  shall  pay  to  the  provincial  treasurer  or  the  collector  of  internal 
revenue  of  the  province  in  which  the  claim  is  situated,  as  the  case  may  be, 
twenty-five  pesos  per  hectare  for  his  claim,  together  with  the  proper  fees, 
whereupon  the  whole  proceedings  and  the  judgment  roll  shall  be  certified  by 
the  provincial  secretary,  or  such  other  officer  as  by  said  Government  may  be* 
described  as  mining  recorder,  to  the  Secretary  of  the  Interior  of  the  Philippine- 
Islands,  and  a  patent  shall  issue  thereon  for  the  claim,  or  such  portion  thereof 
as  the  applicant  shall  appear,  from  the  decision  of  the  court,  rightly  to  possess. 
The  adverse  claim  may  be  verified  by  the  oath  of  any  duly  authorized  agent  or 
attorney  in  fact  of  the  adverse  claimant  cognizant  of  the  facts  stated :  and  the 
adverse  claimant,  if  residing  or  at  the  time  being  beyond  the  limits  of  the 
province  wherein  the  claim  is  situated,  may  make  oath  to  the  adverse  claim 
before  the  clerk  of  any  conrt  of  record,  or  any  notary  public  of  any  province 
or  military  department  of  the  Philippine  Islands,  or  any  other  officer  authorized 
to  administer  oaths  where  the  adverse  claimants  may  then  be.  If  it  appears 
from  the  decision  of  the  court  that  several  parties  are  entitled  to  separate  and 
different  portions  of  the  claim,  each  party  may  pay  for  his  portion  of  the  claim, 
with  the  proper  fees,  and  file  the  certificate  and  description  by  the  Chief  of  the 
Philippine  Insular  Bureau  of  Public  Lands,  whereupon  the  provincial  secretary 
or  such  other  officer  as  by  the  Government  of  said  Islands  may  be  described 
as  mining  recorder  shall  certify  the  proceedings  and  judgment  roll  to  the  Secre- 
tary of  the  Interior  for  the  Philippine  Islands,  as  in  the  preceding  case,  and 
patents  shall  issue  to  the  several  parties  according  to  their  respective  rights. 
If,  in  any  action  brought  pursuant  to  this  section,  title  to  the  ground  in  contro- 
versy shall  not  be  established  by  either  party,  the  court  shall  so  find,  and 
judgment  shall  be  entered  accordingly.  In  such  case  costs  shall  not  be  allowed 
to  either  party,  and  the  claimant  shall  not  proceed  in  the  office  of  the  provin- 
cial secretary  or  such  other  officer  as  by  the  Government  of  said  Islands  may 
be  described  as  mining  recorder  or  be  entitled  to  a  patent  for  the  ground  in 
controversy  until  he  shall  have  perfected  his  title.  Nothing  herein  contained 
shall  be  construed  to  prevent  the  alienation  of  a  title  conveyed  by  a  patent  or 
a  mining  claim  to  any  person  whatever. 

Sec.  40.  That  the  description  of  mineral  claims  upon  surveyed  lands  shall 
designate  the  location  of  the  claim  with  reference  to  the  lines  of  the  public 
surveys,  but  need  not  conform  therewith ;  but  where  a  patent  shall  be  issued 
for  claims  upon  unsurveyed  lands,  the  Chief  of  the  Philippine  Insular  Bureau 
of  Public  Lands  in  extending  the  surveys  shall  adjust  the  same  to  the  bounda- 
ries of  such  patented  claim  according  to  the  plat  or  description  thereof,  but  so 
as  in  no  case  to  interfere  with  or  change  the  location  of  any  such  patented 
claim. 

Sec.  41.  That  any  person  authorized  to  enter  lands  under  this  Act  may  enter 
and  obtain  patent  to  lands  that  are  chiefly  valuable  for  building  stone  under  the 
provisions  of  this  Act  relative  to  placer  mineral  claims. 

Sec.  42.  That  any  person  authorized  to  enter  lands  under  this  Act  may  enter 
and  obtain  patent  to  lands  containing  petroleum  or  other  mineral  oils  ana 
chiefly  valuable  therefor  under  the  provisions  of  this  Act  relative  to  placer 
mineral  claims. 

Sec.  43.  That  no  location  of  a  placer  claim  shall  exceed  sixty-four  hectares 
for  any  association  of  persons,  irrespective  of  the  number  of  persons  composing 
such  association,  and  no  such  location  shall  include  more  than  eight  hectares 
for  an  individual  claimant.  Such  locations  shall  conform  to  the  laws  of  the 
United  States  Philippine  Commission,  or  its  successors,  with  reference  to  public 
surveys,  and  nothing  in  this  section  contained  shall  defeat  or  impair  any  bona 


€48  APPENDIX    F. 

fide  ownership  of  land  for  agricultural  purposes  or  authorize  the  sale  of  the 
improvements  of  any  bona  fide  settler  to  any  purchaser. 

Sec.  44.  That  where  placer  claims  are  located  upon  surveyed  lands  and  con- 
form to  legal  subdivisions,  no  further  survey  or  plat  shall  be  required,  and  all 
placer  mining  claims  located  after  the  date  of  passage  of  this  Act  shall  conform 
as  nearly  as  practicable  to  the  Philippine  system  of  public-land  surveys  and 
the  regular  subdivisions  of  such  surveys ;  but  where  placer  claims  can  not  be 
conformed  to  legal  subdivisions,  survey,  and  plat  shall  be  made  as  on  unsur- 
veyed  lands ;  and  where  by  the  segregation  of  mineral  lands  in  any  legal  sub- 
division a  quantity  of  agricultural  land  less  than  sixteen  hectares  shall  remain, 
such  fractional  portion  of  agricultural  land  may  be  entered  by  any  party 
qualified  by  law  for  homestead  purposes. 

Sec.  45.  That  where  such  person  or  association,  they  and  their  grantors  have 
held  and  worked  their  claims  for  a  period  equal  to  the  time  prescribed  by  the 
statute  of  limitations  of  the  Philippine  Islands,  evidence  of  such  possession 
and  working  of  the  claims  for  such  period  shall  be  sufficient  to  establish  a 
right  to  a  patent  thereto  under  this  Act,  in  the  absence  of  any  adverse  claim ; 
but  nothing  in  this  Act  shall  be  deemed  to  impair  any  lien  which  may  have 
attached  in  any  way  whatever  prior  to  the  issuance  of  a  patent. 

Sec.  46.  That  the  Chief  of  the  Philippine  Insular  Bureau  of  Public  Lands 
may  appoint  competent  deputy  mineral  surveyors  to  survey  mining  claims.  The 
expenses  of  the  survey  of  vein  or  lode  claims  and  of  the  survey  of  placer  claims 
together  with  the  cost  of  publication  of  notices,  shall  be  paid  by  the  applicants, 
and  they  shall  be  at  liberty  to  obtain  the  same  at  the  most  reasonable  rates, 
and  they  shall  also  be  at  liberty  to  employ  any  such  deputy  mineral  surveyor 
to  make  the  survey.  The  Chief  of  the  Philippine  Insular  Bureau  of  Public 
Lands  shall  also  have  power  to  establish  the  maximum  charges  for  surveys 
and  publication  of  notices  under  this  Act ;  and  in  case  of  excessive  charges  for 
publication  he  may  designate  any  newspaper  published  in  a  province  where 
mines  are  situated,  or  in  Manila,  for  the  publication  of  mining  notices  and  fix 
the  rates  to  be  charged  by  such  paper;  and  to  the  end  that  the  Chief  of  the 
Bureau  of  Public  Lands  may  be  fully  informed  on  the  subject  such  applicant 
shall  file  with  the  provincial  secretary,  or  such  other  officer  as  by  the  Govern- 
ment of  the  Philippine  Islands  may  be  described  as  mining  recorder,  a  sworn 
statement  of  all  charges  and  fees  paid  by  such  applicant  for  publication  and 
surveys,  and  of  all  fees  and  money  paid  the  provincial  treasurer  or  the  col- 
lector of  internal  revenue,  as  the  case  may  be,  which  statement  shall  be  trans- 
mitted, with  the  other  papers  in  the  case,  to  the  Secretary  of  the  Interior  for 
the  Philippine  Islands. 

Sec.  47.  That  all  affidavits  required  to  be  made  under  this  Act  may  be  veri- 
fied before  any  officer  authorized  to  administer  oaths  within  the  province  or 
military  department  where  the  claims  may  be  situated,  and  all  testimony  and 
proofs  may  be  taken  before  any  such  officer,  and,  when  duly  certified  by  the 
officer  taking  the  same,  shall  have  the  same  force  and  effect  as  if  taken  before 
the  proper  provincial  secretary  or  such  other  officer  as  by  the  Government  of 
the  Philippine  Islands  may  be  described  as  mining  recorder.  In  cases  of  con- 
test as  to  the  mineral  or  agricultural  character  of  land  the  testimony  and 
proofs  may  be  taken  as  herein  provided  on  personal  notice  of  at  least  ten  days 
to  the  opposing  party;  or  if  such  party  can  not  be  found,  then  by  publication 
at  least  once  a  week  for  thirty  days  in  a  newspaper  to  be  designated  by  the 
provincial  secretary  or  such  other  officer  as  by  said  Government  may  be  de- 
scribed as  mining  recorder  published  nearest  to  the  location  of  such  land  and 
in  two  newspapers  published  in  Manila,  one  in  the  English  language  and  one  in 


PHILIPPINE   MINING    LAWS.  CIO 

the  Spanish  language,  to  be  designated  by  the  Chief  of  the  Philippic 
Bureau  of  Public  Lands;   and  the  provincial  secretary  or  such  other  officer  as 
by  said  Government  may  be  described  as  mining  recorder  shall  require  proois 
that  such  notice  has  been  given. 

48.  That  where  mmmineral  land  not  contiguous  to  the  vein  or  lodo  is 
used  or  occupied  by  the  proprietor  of  such  vein  or  lode  for  mining  or  milling 
purposes,  such  nonadjacent  surface  ground  may  be  embraced  and  included  in 
mi  application  for  a  patent  for  such  vein  or  lode,  and  the  same  may  be  pat- 
ontod  therewith,  subject  to  the  same  preliminary  requirements  as  to  survey 
and  notice  as  are  applicable  to  veins  or  lodes ;  but  no  location  of  such  nonadja- 
ceiit  laud  shall  exceed  two  hectares,  and  payment  for  the  same  must  be  made 
at  the  same  rate  as  fixed  by  this  Act  for  the  superficies  of  the  lode.  The  own- 
er of  a  quartz  mill  or  reduction  works  not  owning  a  mine  in  connection  there- 
with may  also  receive  a  patent  for  his  mill  site  as  provided  in  this  section. 

Sec.  49.  That  as  a  condition  of  sale  the  Government  of  the  Philippine  Is- 
lands may  provide  rules  for  working,  policing,  and  sanitation  of  mines,  and 
rules  concerning  easements,  drainage,  water  rights,  right  of  wray,  right  of  Gov- 
ernment survey  and  inspection,  and  other  necessary  means  to  their  complete 
development  not  inconsistent  with  the  provisions  of  this  Act,  and  those  condi- 
tions shall  be  fully  expressed  in  the  patent.  The  Philippine  Commission  or  its 
successors  are  hereby  further  empowered  to  fix  the  bonds  of  deputy  mineral 
surveyors. 

Sec.  50.  That  whenever  by  priority  of  possession  rights  to  the  use  of  water 
for  mining,  agricultural,  manufacturing,  or  other  purposes  have  vested  and 
accrued  and  the  same  are  recognized  and  acknowledged  by  the  local  customs, 
laws,  and  the  decisions  of  courts,  the  possessors  and  owners  of  such  vested 
rights  shall  be  maintained  and  protected  in  the  same,  and  the  right  of  wav  for 
the  construction  of  ditches  and  canals  for  the  purposes  herein  specified  is 
acknowledged  and  confirmed,  but  whenever  any  person,  in  the  construction  of 
any  ditch  or  canal,  injures  or  damages  the  possession  of  any  settler  on  the 
public  domain,  the  party  committing  such  injury  or  damage  shall  be  liable  to 
the  party  injured  for  such  injury  or  damage. 

Sec.  51.  That  all  patents  granted  shall  be  subject  to  any  vested  and  accrued 
water  rights,  or  rights  to  ditches  and  reservoirs  used  in  connection  with  such 
water  rights  as  may  have  been  acquired  under  or  recognized  by  the  preceding 
section. 

Sec.  52.  That  the  Government  of  the  Philippine  Islands  is  authorized  to 
establish  land  districts  and  provide  for  the  appointment  of  the  necessary  offi- 
cers wherever  they  may  deem  the  same  necessary  for  the  public  convenience, 
and  to  further  provide  that  in  districts  where  land  offices  are  established  pro- 
ceedings required  by  this  Act  to  be  had  before  provincial  officers  shall  be  had 
before  the  proper  officers  of  such  land  offices. 

Sec.  53.  (As  amended  by  act  of  Congress  approved  February  6,  1905.)  That 
every  person  above  the  age  of  twenty-one  years  who  is  a  citizen  of  the  United 
States  or  of  the  Philippine  Islands,  or  who  has  acquired  the  right  of  a  native 
of  said  Islands  under  and  by  virtue  of  the  Treaty  of  Paris,  or  any  association 
of  persons  severally  qualified  as  above,  shall,  upon  application  to  the  proper 
provincial  treasurer,  have  the  right  to  enter  any  quantity  of  vacant  coal  lands 
of  said  Islands,  not  otherwise  appropriated  or  reserved  by  competent  authority, 
not  exceeding  sixty-four  hectares  to  such  individual  person,  or  one  hun- 
dred and  twenty-eight  hectares  to  such  association,  upon  payment  to  the  pro- 
vincial treasurer  or  the  collector  of  internal  revenue,  as  the  case  may  be,  of 
wot  less  than  lifty  pesos  per  hectare  for  such  lauds,  where  the  same  shall  be 


650  APPENDIX   F. 

situated  more  than  twenty-five  kilometers  from  any  completed  railroad  01 
a  vn  liable  harbor  or  navigable  stream,  and  not  less  than  one  hundred  pesos  per 
hectare  of  such  land  as  shall  be  within  twenty-five  kilometers  of  such  road, 
harbor,  or  stream:  Provided,  That  such  entries  shall  be  taken  in  squares  of 
sixteen  or  sixty-four  hectares,  in  conformity  with  the  rules  and  regulations 
governing  the  public-land  surveys  of  the  said  Islands  in  plotting  legal  subdi- 
visions. 

Sec.  54.  That  any  person  or  association  of  persons,  severally  qualified  as 
above  provided,  who  have  opened  and  improved,  or  shall  hereafter  open  and 
improve,  any  coal  mine  or  mines  upon  the  public  lands,  and  shall  be  in  actual 
possession  of  the  same,  shall  be  entitled  to  a  preference  right  of  entry  under 
the  preceding  section  of  the  mines  so  opened  and  improved. 

Sec.  55.  That  all  claims  under  the  preceding  section  must  be  presented  to 
the  proper  provincial  secretary  within  sixty  days  after  the  date  of  actual  IMS- 
session  and  the  commencement  of  improvements  on  the  land  by  the  filing  of  a 
declaratory  statement  therefor ;  and  where  the  improvements  shall  have  been 
made  prior  to  the  expiration  of  three  months  from  the  date  of  the  passage  of 
this  Act,  sixty  days  from  the  expiration  of  such  three  months  shall  be  allowed 
for  the  filing  of  a  declaratory  statement ;  and  no  sale  under  the  provisions  of 
this  Act  shall  be  allowed  until  the  expiration  of  six  months  from  the  date  of 
the  passage  of  this  Act. 

Sec.  56.  That  the  three  preceding  sections  shall  be  held  to  authorize  only 
one  entry  by  the  same  person  or  association  of  persons ;  and  no  association  of 
person,  any  member  of  which  shall  have  taken  the  benefit  of  such  sections, 
either  as  an  individual  or  as  a  member  of  any  other  association  shall  enter 
or  hold  any  other  lands  under  the  provisions  therof ;  and  no  member  of  any 
association  which  shall  have  taken  the  benefit  of  such  section  shall  enter  or 
hold  any  other  lands  under  their  provisions;  and  all  persons  claiming  under 
section  fifty-four  shall  be  required  to  prove  their  respective  rights  and  pay 
for  the  lands  filed  upon  within  one  year  from  the  time  prescribed  for  filing 
their  respective  claims ;  and  upon  failure  to  file  the  proper  notice  or  to  pay 
for  the  land  within  the  required  period,  the  same  shall  be  subject  to  entry 
by  any  other  qualified  applicant. 

Sec.  57.  That  in  case  of  conflicting  claims  upon  coal  lands  where  the  im- 
provements shall  be  commenced  after  the  date  of  the  passage  of  this  Act, 
priority  of  possession  and  improvement,  followed  by  proper  filing  and  continued 
good  faith,  shall  determine  the  preference  right  to  purchase.  And  also  where 
improvements  have  already  been  made  prior  to  the  passage  of  this  Act,  division 
of  the  land  claimed  may  be  made  by  legal  subdivisions,  which  shall  conform 
as  nearly  as  practicable  with  the  subdivisions  of  land  provided  for  in  this  Act, 
to  include  as  near  as  may  be  the  valuable  improvements  of  the  respective 
parties.  The  Government  of  the  Philippine  Islands  is  authorized  to  issue  all 
needful  rules  and  regulations  for  carrying  into  effect  the  provisions  of  this  and 
preceding  sections  relating  to  mineral  lands. 

Sec.  58.  (As  amended  by  act  of  Congress  approved  February  6,  1905.)  That 
whenever  it  shall  be  made  to  appear  to  the  secretary  of  any  province  or  the 
commander  of  any  military  department  in  the  Philippine  Islands  that  any 
lands  within  the  province  are  saline  in  character,  it  shall  be  the  duty  of  said 
provincial  secretary  or  commander,  under  the  regulations  of  the  Government 
of  the  Philippine  Islands,  to  take  testimony  in  reference  to  such  lands,  to 
ascertain  their  true  character,  and  to  report  the  same  to  the  Secretary  of  the 
Interior  for  the  Philippine  Islands;  and  if  upon  such  testimony  the  Secretary 
of  the  Interior  shall  find  that  such  lands  are  saline  and  incapable  of  being  pur- 


PHILIPPINE   MINING    LAWS.  651 

chased  under  any  of  the  laws  relative  to  the  public  domain,  then  and  in  such 
case  said  lands  shall  be  offered  for  sale  at  the  office  of  the  provincial  secretary 
or  such  other  officer  as  by  the  said  Government  may  be  described  as  mining 
recorder  of  the  province  or  department  in  which  the  same  shall  be  situated,  as 
the  case  may  be,  under  such  regulations  as  may  be  prescribed  by  said  Govern- 
ment, and  sold  to  the  highest  bidder  for  cash  at  a  price  of  not  less  than  six 
pesos  per  hectare;  and  in  case  such  lands  fail  to  sell  when  so  offered,  then  the 
same  shall  be  subject  to  private  sale  at  such  office,  for  cash,  at  a  price  not  less 
than  six  pesos  per  hectare,  in  the  same  manner  as  other  lands  in  the  said 
Islands  are  sold.  All  executive  proclamations  relating  to  the  sales  of  public 
saline  lands  shall  be  published  in  only  two  newspapers,  one  printed  in  the  Eng- 
lish language  and  one  in  the  Spanish  language,  at  Manila,  which  shall  be 
designated  by  said  Secretary  of  the  Interior. 

Siv.  r»!).  That  no  Act  granting  lands  to  provinces,  districts,  or  municipalities 
to  aid  in  the  construction  of  roads,  or  for  other  public  purposes,  shall  be  so 
construed  as  to  embrace  mineral  lands,  which,  in  all  cases,  are  reserved  exclu- 
sively, unless  otherwise  specially  provided  in  the  act  or  acts  making  the  grant. 

Sec.  60.  That  nothing  in  this  Act  shall  be  construed  to  affect  the  rights  of 
any  person,  partnership,  or  corporation  having  a  valid,  perfected  mining  con- 
cession granted  prior  to  April  eleventh,  eighteen  hundred  and  ninety-nine,  but 
all  such  concessions  shall  be  conducted  under  the  provisions  of  the  law  in  force 
at  the  time  they  were  granted,  subject  at  all  times  to  cancellation  by  reason 
of  illegality  in  the  procedure  by  which  they  were  obtained,  or  for  failure  to 
comply  with  the  conditions  prescribed  as  requisite  to  their  retention  in  the 
laws  under  which  they  were  granted:  Provided,  That  the  owner  or  owners  of 
every  such  concession  shall  cause  the  corners  made  by  its  boundaries  to  be 
distinctly  marked  with  permanent  monuments  within  six  months  after  this 
Act  has  been  promulgated  in  the  Philippine  Islands,  and  that  any  concessions 
the  boundaries  of  which  are  not  so  marked  within  this  period  shall  be  free 
and  open  to  explorations  and  purchase  under  the  provisions  of  this  Act. 

Sec.  61.  That  mining  rights  on  public  lands  in  the  Philippine  Islands  shall, 
after  the  passage  of  this  Act,  be  acquired  only  in  accordance  with  its  provi- 
sions. 

Sec.  62.  That  all  proceedings  for  the  cancellation  of  perfected  Spanish  con- 
cessions shall  be  conducted  in  the  courts  of  the  Philippine  Islands  having 
jurisdiction  of  the  subject-matter  and  of  the  parties,  unless  the  United  States 
Philippine  Commission,  or  its  successors,  shall  create  special  tribunals  for  the 
determination  of  such  controversies. 


ACTS  OP  PHILIPPINE  COMMISSION. 
[No.  624.] 

An  Act  prescribing  regulations  governing  the  location  and  manner  of  record- 
ing mining  claims,  and  the  amount  of  work  necessary  to  hold  possession 
of  a  mining  claim,  under  the  provisions  of  the  Act  of  Congress  approved 
July  first,  nineteen  hundred  and  two,  entitled  "An  Act  temporarily  to 
provide  for  the  administration  of  the  affairs  of  civil  government  in  the 
Philippine  Islands,  and  for  other  purposes." 

By  authority  of  the  United  States,  be  it  enacted  by  the  Philippine  Commis- 
sion, that: 

Section  1.     The  term  mineral  claim  as  used  in  these  regulations  shall  be 
understood  to  mean  lode  claim,  and  the  term  mining  claim  shall  be  understood 


652  APPENDIX    F. 

to  include  both  lode  and  placer  claims.  A  placer  claim  shall  be  understood  to 
mean  a  claim  of  land  more  valuable  for  placer  mining,  stone  quarrying,  or  for 
the  securing  of  earth  for  use  in  tile,  brick,  pottery,  paint,  or  other  manufac- 
ture, or  of  petroleum,  guano,  or  other  mineral  product,  than  for  other  purposes. 
The  rules  and  regulations  for  the  securing  of  claims  so  defined  as  placer  claims 
shall  be  as  for  placer  claims  as  mentioned  in  this  act. 

Sec.  2.  Until  other  officers  may  be  designated  by  the  Government  of  the 
Philippine  Islands  as  mining  recorders,  the  provincial  secretaries  shall  act  as 
such  in  their  respective  provinces.  In  provinces  or  districts  where  civil  gov- 
ernment has  not  been  established  such  military  officers  as  may  be  designated 
for  that  purpose  by  the  commanding  general,  Division  of  the  Philippines,  shall 
act  as  mining  recorders. 

Sec.  3.  (As  amended  "by  Acts  Nos.  777  and  1134-)  All  declarations  and 
affidavits  regarding  mining  claims,  and  all  other  documents  and  instruments 
in  writing,  of  whatever  character  or  nature,  alienating,  mortgaging,  leasing, 
or  otherwise  affecting  the  possession  of  mining  claims  or  any  right  or  title 
thereto  or  interest  therein,  shall  be  recorded  in  the  order  in  which  they  are 
filed  for  record,  and  from  and  after  such  filing  for  record  all  declarations  and 
affidavits  regarding  mining  claims,  and  all  documents  and  instruments  in  writ- 
ing, of  whatever  kind  or  nature,  alienating,  mortgaging,  leasing,  or  otherwise 
affecting  the  possession  of  mining  claims  or  any  right  or  title  thereto  or  inter- 
est therein  shall  constitute  notice  to  all  persons  and  to  the  whole  world  of  the 
contents  of  said  declarations,  affidavits,  documents,  and  written  instruments 
and  of  the  legal  effect  thereof,  and  under  no  circumstances  shall  any  departure 
be  made  from  that  course. 

The  form  of  declaration  of  location  of  a  mineral  claim  shall  be  as  follows: 


Declaration  of  Location. 

The  undersigned  hereby  declares  and  gives  notice  that,  having  complied  with 
the  provisions  of  the  act  of  Congress  approved  July  1,  1902,  relative  to  the 

location  of  mining  claims,  he  has  located    linear  feet  on  a  lode  of 

mineral-bearing    rock,    situate    in    the    barrio    of    ,    within    the 

jurisdictional  limits  of  the  municipality  of ,  province  of ,  district 

of ,  island  of ,  P.  I. 

That  the  name  of  the  above  location  is  the mineral  claim,  and  that 

the  same  was  located  by  him  on  the day  of ,  A.  D.  190. . . 

That  there  is  written  on  post  No.  1  (here  insert  an  exact  copy  of  what  is 
inscribed  on  post  No.  1);  and  upon  post  No.  2  (here  insert  an  exact  copy  of 
what  is  inscribed  on  post  No.  2). 

That  the  said  claim  is  situate  (here  state  as  accurately  as  possible,  prefer- 
ably by  course  and  distance,  the  position  of  the  claim  with  reference  to  some 
natural  object  or  permanent  monument). 

• ,  Locator 

Witness: 


Witness: 


Sec.  4.     The  mining  recorder  shall  note  on  each  Instrument  filed  for  record 
the  year,  month,  and  day,  and  the  hour  and  minute  of  the  day  on  which  the 


PHILIPPINE    MIXING   LAWS  053 

same  was  so  filed,  and  after  it  has  been  recorded  he  shall  indorse  on  the  back 
thereof  a  certificate  in  the  following  form: 

Office  of  the  Mining  Recorder. 
(District     of) 

/Province   off 

,   ,  100... 

The  within  instrument  was  filed  for  record  in  this  office  at o'clock 

and minutes in.,  on  the day  of ,  A.  D.  190.  .,  and 

has  been  recorded  in  Book of  Records  of  Mining  Claims,  at  page 

,  Mining  Recorder. 

Sec.  5.  (As  amended  by  Acts  Nos.  859  and  1399.)  There  shall  be  paid  to 
the  provincial  treasurer,  or  in  the  Moro  province  to  the  district  treasurer  of 
the  proper  district,  a  fee  of  two  Philippine  pesos  for  each  declaration  of  loca- 
tion of  a  mining  claim  and  for  each  affidavit  accompanying  such  declaration, 
and  for  each  document  or  instrument  in  writing,  of  whatever  character  or  na- 
ture, alienating,  mortgaging,  leasing,  or  otherwise  affecting  the  possession  of 
mining  claims  or  any  right  or  title  thereto  or  interest  therein,  filed  for  record, 
and  on  the  presentation  of  the  receipt  of  the  provincial  or  district  treasurer 
the  said  declaration,  affidavit,  or  other  document  or  instrument  in  writing  shall 
be  recorded  by  the  mining  recorder,  provided  all  requirements  of  the  law  be- 
fore recording  shall  have  been  complied  with.  These  fees  shall  be  accounted 
for  as  other  collections  of  the  officers  receiving  them,  and  deposited  for  the 
credit  of  the  proper  province  or  district,  in  accordance  with  section  six  of  act 
numbered  six  hundred  and  twenty-four. 

Sec.  6.  The  fees  collected  by  authority  of  the  preceding  section  shall  be 
turned  into  the  treasury  of  the  province  in  which  the  mining  claim  for  the 
recording  of  which  said  fees  may  be  paid  is  situate,  or  in  provinces  or  districts 
where  civil  government  has  not  been  established  into  the  office  of  the  Collector 
of  Internal  Revenue. 

Sec.  7.  The  books  necessary  for  the  recording  of  mining  claims  shall  be 
provided  by  the  provincial  authorities  of  the  respective  provinces,  or  in  prov- 
inces or  districts  where  civil  government  has  not  been  established,  by  the  Chief 
of  the  Bureau  of  Public  Lands. 

Sec.  8.  In  addition  to  the  requirements  of  sections  twenty-three  and  twenty- 
four  of  the  Act  of  Congress  approved  July  first,  nineteen  hundred  and  two,  in 
regard  to  placing  posts  numbers  one  and  two  on  the  line  of  location,  and 
marking  the  line  between  them,  each  locator  of  a  mineral  claim  shall  establish, 
each  of  the  four  corners  of  the  claim  by  marking  a  standing  tree  or  rock  in 
place,  or  by  setting  in  the  ground,  where  practicable,  a  post  or  stone.  Each 
corner  shall  be  distinctly  marked  to  indicate  that  it  is  the  northeast,  southeast, 
southwest,  or  other  corner,  as  the  case  may  be,  of  the  claim  in  question ;  and 
the  posts  or  stones  used  to  mark  such  corners  shall  be  of  the  dimensions  re- 
quired by  these  regulations  for  posts  and  stones  marking  corners  or  angles  of  a 
placer  claim. 

Sec.  9.  The  locator  of  a  placer  claim  shall  post  upon  the  same  a  notice  con- 
taining the  name  of  the  claim,  designating  it  as  a  placer  claim,  the  name  of 
each  locator,  the  date  of  the  location,  and  the  number  of  hectares  claimed.  He 
shall  also  define  the  boundaries  of  the  claim  by  marking  a  standing  tree  or 
rock  in  place,  or  by  setting  a  post  or  stone  at  each  corner  or  angle  of  the  claim. 
When  a  post  is  used  it  must  be  at  least  five  inches  in  diameter  or  four  inches- 


654  APPENDIX   F. 

on  each  side  by  four  feet  six  inches  in  length,  and,  where  practicable,  set  one 
foot  in  the  ground  and  surrounded  by  a  mound  of  earth  or  stone  four  feet  in 
diameter  by  two  feet  in  height.  When  a  stone,  not  a  rock  in  place,  is  used,  it 
must  be  not  less  than  six  inches  on  each  side  by  two  and  one-half  feet  in 
length,  and  must  be  set  so  as  to  project  half  its  length  above  the  ground. 
Where  a  stone,  a  rock  in  place,  is  used,  a  cross  must  be  cut  in  the  stone,  the 
nruis  of  which  cross  must  be  at  least  four  inches  long,  intersecting,  approxi- 
mately, at  right  angles  and  in  their  centers,  the  cutting  to  be  at  least  one-half 
inch  deep.  The  intersection  of  the  arms  shall  constitute  the  corner.  Each  tree, 
rock  in  place,  stake,  or  stone  used  to  designate  a  corner  or  angle  of  a  placer 
claim  must  be  so  marked  as  to  clearly  indicate  its  purpose,  and  the  objects 
selected  to  designate  the  corners  of  a  claim  shall  be  marked  with  a  series  of 
consecutive  numbers,  thus:  "Cor.  No.  1,"  "Cor.  No.  2."  "Cor.  No.  3,"  and  so 
forth:  Provided,  That  nothing  in  this  section  shall  be  understood  to  require 
the  establishment  and  marking  of  any  corner  or  angle  of  a  placer  claim 
located  upon  surveyed  public  lands  at  a  point  where  a  corner  of  the  Philip- 
pine system  of  public-land  surveys  has  previously  been  established,  in  which 
case  it  shall  suffice  in  describing  said  claim  for  record  to  correctly  describe 
said  corner  of  the  public  surveys,  and  to  state  that  such  corner  stands  for 
corner  number  one,  corner  number  two,  or  corner  number  three,  and  so  forth, 
as  the  case  may  be,  of  such  placer  claim. 

Sec.  10.  Within  thirty  days  after  the  location  thereof  every  locator  of  a 
placer  claim  shall  record  the  same  with  the  mining  recorder  of  the  province 
or  district  in  which  the  claim  is  situate. 

Sec.  11.  The  record  of  a  placer  claim  shall  consist  of  a  declaration  of  loca- 
tion reciting  all  the  facts  necessary  to  a  perfect  identification  of  the  claim,  and 
shall  contain  a  true  copy  of  the  notice  posted  thereon  at  the  date  of  location, 
as  well  as  a  description  of  the  claim  as  staked  and  monumented,  showing  the 
length  and  approximate  compass  bearing,  as  near  as  may  be,  of  each  side  or 
course  thereof,  and  stating  in  what  manner  the  respective  corners  are  marked, 
whether  by  a  standing  tree,  rock  in  place,  post,  or  stone,  and  giving  in  de- 
tail the  distinguishing  marks  that  are  written  or  cut  on  each,  and  also  stat- 
ing as  accurately  as  possible,  preferably  by  course  and  distance,  the  position  of 
the  claim  with  reference  to  some  prominent  natural  object  or  permanent  monu- 
ment. 

Sec.  12.  No  placer  claim  shall  be  recorded  unless  the  declaration  of  loca- 
tion be  accompanied  by  an  affidavit  made  by  the  applicant  or  some  person  on 
his  behalf  cognizant  of  the  facts,  that  the  notice  required  by  section  nine  of 
these  regulations  has  been  posted  upon  the  claim,  and  that  the  ground  thereby 
embraced  is  valuable  for  placer  mining  purposes ;  that  the  ground  applied  for 
is  unoccupied  by  any  other  person. 

Sec.  13.  No  mining  claim  shall  be  recorded  unless  the  declaration  be  accom- 
panied by  proof  that  the  locator,  or  each  of  them  in  case  there  be  no  more 
than  one,  is  a  citizen  of  the  United  States  of  America  or  of  the  Philippine  Is- 
lands. The  proof  of  citizenship  required  by  this  section  may  be  that  set  forth 
in  section  thirty-five  of  the  Act  of  Congress  approved  July  first,  nineteen  hun- 
dred and  two. 

Sec.  14.  If  at  any  time  the  locator  of  any  mining  claim  heretofore  or  here- 
after located,  or  his  assigns,  shall  apprehend  that  his  original  notice  or  decla- 
ration was  defective,  erroneous,  or  that  the  requirements  of  the  law  had  not 
been  complied  with  before  recording,  or  shall  be  desirous  of  changing  his 


PHILIPPINE    MINING    LAWS.  655 

boundaries  so  as  to  include  ground  not  embraced  by  the  location  as  originally 
made  and  recorded,  or  in  case  the  original  declaration  of  location  was  made 
prior  to  the  promulgation  of  these  regulations,  and  the  locator  or  his  assigns 
shall  desire  to  conform  the  location  and  declaration  hereto,  such  locator  or  his 
assigns  may  file  an  amended  declaration  of  location  in  accordance  with  the 
provisions  of  the  Act  of  Congress  of  July  first,  nineteen  hundred  and  two,  and 
these  regulations,  with  the  mining  recorder  of  the  province  or  district  in  which 
su<-h  claim  is  situate:  Provided,  That  such  amended  declaration  of  location 
dot's  not  interfere  at  the  date  of  its  filing  for  record  with  the  existing  rights 
of  any  person  or  persons,  and  no  such  amended  location  or  the  record  thereof 
shall  preclude  the  locator  or  his  assigns  from  proving  any  such  title  as  he  or 
they  may  have  held  under  the  original  location. 

Sec.  15.  Within  sixty  days  after  the  expiration  of  the  period  fixed  by  law 
for  the  annual  performance  of  the  labor  or  the  making  of  improvements  upon 
a  mining  claim,  the  locator  thereof,  or  some  person  on  his  behalf  cognizant  of 
the  facts,  shall  make  and  file  for  record  with  the  mining  recorder  of  the  prov- 
ince or  district  in  which  the  claim  is  situate  an  affidavit  in  substance  as  fol- 
lows: 

Affidavit  of  Annual  Assessment  Work. 
Philippine  Islands. 

Province  of| 

District  of  J  " 

,  being  first  duly  sworn,  deposes  and  says  that  he  is  a  citizen  of 

the  United  States  of  America  (or  of  the  Phillippine  Islands,  as  the  case  may  be) 

and  more  than  twenty-one  years  of  age ;   that  he  resides  in 

province    of  j ,  P.  I.,  and  is  personally  acquainted  with  the  mining  claim 

known  as  the (lode  or  placer)  claim,  situate  in  the  barrio  of , 

Province  of ,  island  of ,  P.  I.,  the  declaration  of  location  of  which 

is  recorded  in  the  office  of  the  mining  recorder  of  said  province  (or  district), 

in  Book of  Record  of  Mining  Claims,  at  page ;    that  between 

the day  of ,  190. .,  and  the day  of ,  190. .,  not  less 

than dollars'  worth  of  labor  was  performed  or  improvements  made  up- 
on said  claim,  not  including  the  work  done  prior  to  the  date  of  recording  the 
same.  Such  work  was  done  or  improvements  made  by  and  at  the  expense  of 

,  the  owner  of  said  claim,  for  the  purpose  of  complying  with  the  laws 

of  the  United  States  relating  to  annual  assessment  work,  and   (here 

name  the  miners  or  other  persons  who  did  the  work)  were  the  persons  em- 
ployed by  said  owner  who  did  such  work  or  made  such  improvements,  and 
that  said  work  or  improvements  consisted  of  and  are  described  as  follows,  to 

wit:     (here  describe  the  work  done). 

(Signature) 

Subscribed  and  sworn  to  before  me  this day  of 190. .. 


(Signature  of  officer  who  administers  oath.) 

Such  affidavit,  when  recorded,  shall  be  prima  facie  evidence  of  the  perform- 
ance of  such  labor  or  the  making  of  such  improvements,  and  shall  be  received 
in  evidence  by  all  courts  in  the  Philippine  Islands,  as  shall  also  the  record 
thereof  or  a  certified  copy  of  the  same. 

Sec.  16.  Actual  expenditures  and  cost  of  mining  improvements  by  the  claim- 
ant or  his  grantors,  having  a  direct  relation  to  the  development  of  the  claim, 


t>56  APPENDIX   F. 

shall  be  Included  in  the  estimate  of  assessment  work.  The  expenditures  may 
be  made  from  the  surface,  or  in  running  a  tunnel,  drifts,  or  cross-cuts  for  the 
development  of  the  claim.  Improvements  of  any  other  character,  such  as  build- 
ings, machinery,  or  roadways,  must  be  excluded  from  the  estimate  unless  it  is 
clearly  shown  that  they  are  associated  with  actual  excavations,  such  as  cuts, 
tunnels,  shafts,  and  so  forth,  are  essential  to  the  practical  development  of  and 
actually  facilitate  the  extraction  of  mineral  from  the  claim. 

Sec.  17.  The  public  good  requiring  the  speedy  enactment  of  this  bill,  the 
passage  of  the  same  is  hereby  expedited  in  accordance  with  section  two  of  "An 
Act  prescribing  the  order  of  procedure  by  the  Commission  in  the  enactment  of 
laws,"  passed  September  twenty-sixth,  nineteen  hundred. 

Sec.  18.    This  Act  shall  take  effect  on  its  passage. 

Enacted,  February  7,  1903. 

[No.  1,128.] 

An  Act  prescribing  regulations  governing  the  procedure  for  acquiring  title  to 
public  coal  lands  in  the  Philippine  Islands,  under  the  provisions  of  sec- 
tions fifty-three,  fifty-four,  fifty-five,  fifty-six,  and  fifty-seven  of  the  Act  of 
Congress  approved  July  first,  nineteen  hundred  and  two,  entitled  "An  Act 
temporarily  to  provide  for  the  administration  of  the  affairs  of  civil  gov- 
ernment in  the  Philippine  Islands,  and  for  other  purposes." 
By  authority  of  the  United  States,  be  it  enacted  by  the  Philippine  Commis- 
sion that: 

Section  1.  Any  person  above  the  age  of  twenty-one  years,  who  is  a  citizen 
of  the  United  States  or  of  the  Philippine  Islands,  or  who  has  acquired  the 
rights  of  a  native  of  said  Islands  under  and  by  virtue  of  the  Treaty  of  Paris, 
or  any  association  of  persons  severally  qualified  as  above,  may  purchase  any 
unreserved,  unappropriated  public  land  which  is  chiefly  valuable  for  coal  by 
proceeding  as  hereinafter  directed:  Provided,  That  no  individual  person  shall 
be  entitled  to  purchase  more  than  sixty-four  hectares  and  no  association  more 
than  one  hundred  and  twenty-eight  hectares:  And  provided  further,  That 
this  Act  shall  be  held  to  authorize  but  one  entry  by  the  same  person  or  as- 
sociation of  persons,  and  no  association  of  persons,  any  member  of  which 
shall  have  taken  the  benefit  of  this  Act,  either  as  an  individual  or  as  a  mem- 
ber of  any  other  association,  shall  enter  or  hold  any  other  lands  under  the 
provisions  hereof,  and  no  member  of  any  association  which  shall  have  taken 
the  benefit  of  this  Act  shall  enter  or  hold  any  other  lands  under  the  provisions 
hereof:  And  provided  further,  That  such  lands,  if  previously  surveyed  by  the 
Government,  shall  be  taken  by  legal  subdivisions,  but  if  unsurveyed  shall  be 
taken,  wherever  possible,  in  the  form  of  squares  which  shall  contain  at  least 
sixteen  hectares  each. 

Sec.  2.  A  coal  claim  may  be  initiated  either  by  filing  a  declaration  of  loca- 
tion with  the  mining  recorder  of  the  province  in  which  the  land  is  located,  or 
by  actually  taking  possession  of  the  land  and  making  improvements  thereon: 
Provided,  however,  That  where  claims  are  initiated  by  occupation,  a  proper 
declaration  of  location  must  be  filed  with  the  mining  recorder  within  sixty 
days  after  the  date  of  actual  possession  and  commencement  of  improvements. 
Sec.  3.  The  declaration  of  location  above  mentioned  must  be  executed  under 
oath,  and  must  describe  the  land  occupied  in  as  definite  a  manner  as  practica- 
ble, and  must  contain  all  necessary  allegations  to  show  that  applicant  has  the 
qualifications  required  under  section  one  of  this  Act,  and  that  the  land  is  of 


PHILIPPINE   MINING   LAWS.  C57 

the  character  therein  mentioned.  In  case  a  right  to  purchase  is  based  on  prior 
occupation  and  improvement,  that  fact  must  be  set  out,  and  the  date  of  occupa- 
tion and  amount  of  improvements  stated. 

Sec.  4.  It  shall  be  the  duty  of  the  mining  recorder  to  record  declarations  of 
locations  of  coal  claims  in  the  same  manner  that  declarations  of  locations  of 
mining  claims  are  recorded;  and  for  such  services  he  shall  require  the  pny- 
ment  of  a  fee  of  two  pesos,  Philippine  currency,  which  shall  be  paid  to  the 
provincial  or  district  treasurer  as  provided  in  section  five  of  Act  numbered 
Six  hundred  and  twenty-four  as  amended  by  Act  numbered  Eight  hundred  and 
fifty-nine. 

Sec.  5.  All  declarations  of  locations  shall  be  recorded  in  the  order  in 
they  are  filed  for  record,  and  the  mining  recorder  shall  note  on  each  instru- 
ment filed  for  record  the  year,  mouth,  and  day,  and  the  hour  and  minute  of 
the  day  on  which  the  same  was  filed.  After  recording  the  declaration,  the  min- 
ing recorder  shall  make  a  true  copy  of  the  same  and  without  delay  forward  it 
to  the  Chief  of  the  Bureau  of  Public  Lands. 

Sec.  6.  All  persons  seeking  to  acquire  public  lands  under  the  provisions  of 
this  Act  must  prove  their  respective  rights  and  pay  for  the  land  filed  upon 
within  one  year  from  the  time  prescribed  for  filing  their  claims,  and  they  shall 
not  take  from  the  land  and  sell  any  coal  prior  to  obtaining  a  patent. 

Sec.  7.  A  patent  for  land  claimed  and  located  for  valuable  coal  deposits 
may  be  obtained  in  the  following  manner:  Any  person  or  association  authoriz- 
ed to  locate  a  coal  claim  under  this  Act  having  claimed  and  located  a  piece  of 
land  for  such  purposes,  who  or  which  has  complied  with  the  terms  of  this  Act, 
shall  file  with  the  Chief  of  the  Bureau  of  Public  Lands  an  application  for  a 
patent,  under  oath,  showing  such  compliance,  together  with  a  plat  and  field 
notes  of  the  claim  made  by  or  under  the  direction  of  the  Chief  of  the  Bureau 
of  Public  Lands,  and  at  applicant's  expense,  showing  accurately  the  boundaries 
of  the  claim,  which  shall  be  distinctly  marked  by  monuments  on  the  ground, 
and  shall  post  a  copy  of  such  plat,  together  with  a  notice  of  such  application 
for  a  patent,  in  a  conspicuous  place  on  the  land  described  in  such  plat  previous 
to  the  filing  of  the  application  for  a  patent,  and  shall  file  an  affidavit  of  at 
least  two  persons  that  such  plat  and  notice  have  been  duly  posted.  Upon  the 
filing  of  said  application,  plat,  field  notes,  notices,  and  affidavits  it  shall  be  the 
duty  of  the  Chief  of  the  Bureau  of  Public  Lands  to  publish  once  a  week  a 
notice  that  such  application  has  been  made,  for  the  period  of  nine  consecutive 
weeks,  in  a  newspaper  to  be  by  him  designated;  also  to  post  a  copy  of  the  ap- 
plication in  his  office,  and  to  require  such  further  publication  as  he,  with  the 
approval  of  the  Secretary  of  the  Interior,  may  deem  advisable.  At  the  expira- 
tion of  the  period  of  publication  the  claimant  shall  file  his  affidavit,  showing 
that  the  plat  and  notice  have  been  posted  in  a  conspicuous  place  on  the  claim 
during  such  period  of  publication.  If  no  adverse  claim  shall  have  been  filed  in 
the  Bureau  of  Public  Lands  during  the  said  period  of  publication,  it  shall  be 
assumed  that  the  applicant  is  entitled  to  a  patent,  upon  payment  to  the  Chief 
of  the  Bureau  of  Public  Lands  of  fifty  pesos  per  hectare  where  the  land  shall 
be  situated  more  than  fifteen  miles  from  any  completed  railroad,  available 
harbor,  or  navigable  stream,  and  one  hundred  pesos  per  hectare  for  such  lands 
as  shall  be  within  fifteen  miles  of  such  road,  harbor,  or  stream,  and  that  no 
adverse  claim  exists:  Provided,  That  where  the  claimant  for  a  patent  is  not 
a  resident  of  or  within  the  province  wherein  the  land  sought  to  be  purchased 
is  located,  the  application  for  patent  and  the  affidavits  required  to  be  made  in 
COST.MIN.L.— 42 


658  APPENDIX   F. 

this  section  by  the  claimant  for  such  patent  may  be  made  by  his,  her,  or  its  au- 
thorized agent,  where  said  agent  is  conversant  with  the  facts  sought  to  be  es- 
tablished by  said  affidavits. 

Sec.  8.  W.here  an  adverse  claim  is  filed  during  the  period  of  publication,  it 
shall  be  upon  oath  of  the  person  or  persons  making  the  same,  and  shall  show 
the  nature,  boundaries,  and  extent  of  such  adverse  claim,  and  all  proceedings, 
except  the  publication  of  notice  and  making  and  filing  of  the  affidavit  there- 
of, shall  be  stayed  until  the  controversy  shall  have  been  settled  or  decided  by 
a  court  of  competent  jurisdiction,  or  the  adverse  claim  waived.  It  shall  be  the 
duty  of  the  adverse  claimant,  within  thirty  days  after  filing  his  claim,  to  com- 
mence proceedings  in  a  court  of  competent  jurisdiction  to  determine  the  ques- 
tion of  the  right  of  possession,  and  prosecute  the  same  with  reasonable  dili- 
gence to  final  judgment,  and  a  failure  so  to  do  shall  be  a  waiver  of  his  adverse 
claim.  After  such  judgment  shall  have  been  rendered,  the  party  entitled  to 
the  possession  of  the  claim,  or  any  portion  thereof,  may,  without  giving  further 
notice,  file  a  certified  copy  of  the  judgment  roll  with  the  Chief  of  the  Bureau 
of  Public  Lands,  who,  in  case  the  conditions  of  section  seven  of  this  Act  have 
been  complied  with,  shall  issue  to  the  claimant  a  patent  for  such  land  as  by  the 
decision  of  the  court  he  appears  to  be  entitled  to. 

Sec.  9.  All  patents  for  lands  disposed  of  under  this  Act  shall  be  prepared 
in  the  Bureau  of  Public  Lands  and  shall  issue  in  the  name  of  the  United 
States  and  the  Philippine  Government  under  the  signature  of  the  Civil  Gov- 
ernor ;  but  such  patents  shall  be  effective  only  for  the  purposes  defined  in  sec- 
tion one  hundred  and  twenty-two  of  the  Land  Registration  Act,  and  the  actual 
conveyance  of  the  land  shall  be  effected  only  as  provided  in  said  section. 

Sec.  10.  The  Chief  of  the  Bureau  of  Public  Lands,  under  the  supervision  of 
the  Secretary  of  the  Interior,  shall  prepare  and  issue  such  forms  and  instruc- 
tions consistent  with  this  Act  as  may  be  necessary  and  proper  to  carry  its 
provisions  into  effect,  and  for  the  conduct  of  all  proceedings  arising  hereunder. 

Sec.  11.  The  public  good  requiring  the  speedy  enactment  of  this  bill,  the 
passage  of  the  same  is  hereby  expedited  in  accordance  with  section  two  of 
"An  Act  prescribing  the  order  of  procedure  by  the  Commission  in  the  enact- 
ment of  laws,"  passed  September  twenty-six,  nineteen  hundred. 

Sec.  12.     This  Act  shall  take  effect  on  its  passage. 

Enacted,  April  28,  1904. 

INSTRUCTIONS  AND  FORMS. 

Under  the  authority  conferred  by  section  10,  supra,  the  following  instructions 
and  forms  are  issued: 

1.  Land  which,  may  be  purchased. — Any  unclaimed  public  land  containing 
valuable  deposits  of  coal  is  subject  to  sale  under  the  provisions  of  this  Act. 
Prospective  purchasers  will  be  required  to  show  by  affidavit  that  the  land 
sought  to  be  purchased  contains  such  valuable  deposits. 

2.  Who  may  purchase. — The  following-described  persons  are  entitled  un- 
der the  law  to  purchase  public  coal  land: 

(a)  Citizens  of  the  United  States  over  the  age  of  twenty-one  years. 

(b)  Natives  of  the  Philippine  Islands  or  persons  who  have  acquired  th« 
rights  of  natives  by  virtue  of  the  treaty  of  Paris  of  December  tenth,  eighteen 
hundred  and  ninety-eight,  and  who  are  over  the  age  of  twenty-one  years. 

<c)  Associations  of  persons  the  members  of  which  are  severally  qualified  as 
above. 


PHILIPPINE    MINING   LAWS.  650 

3.  Amount  that  may  be  purchased. — An  individual  may  purchase  any 
amount  not  exceeding  sixty-four  hectares.     An  association  is  limited  to  one 
hundred  and  twenty-eight  hectares.    A  purchaser  is  entitled  to  make  but  one 
purchase  of  the  maximum  amount  allowed. 

4.  Form  in  which  land  must  be  taken. — Where  the  land  sought  to  be 
purchased  has  been  previously  surveyed  under  a  regular  governmental  system 
of  surveys  dividing  the  territory  into  subdivisions,  purchase  must  be  made  by 
such  subdivisions.    But  where  the  land  is  nnsurveyed,  it  must  be  taken  when 
possible  in  squares  which  shall  contain  not  less  than  sixteen  hectares,  but  may 
contain  any  quantity  in  excess  of  sixteen  hectares  to  the  amount  the  purchaser 
is  entitled  to  purchase. 

5.  Manner  of  locating  a  coal  claim. — Any  person  qualified  to  purchase 
public  coal  land  may  initiate  a  claim  to  any  particular  tract  by  taking  posses- 
sion of  same  and  within  sixty  days  thereafter  filing  a  declaration  of  location 
thereof  with  the  secretary  of  the  province  in  which  the  land  is  located.  This 
declaration  of  location  must  be  executed  under  oath  and  must  give  as  definite 
a  description  of  the  land  as  it  is  possible  to  state  without  making  a  survey. 
(Form  No.  1  should  be  used.) 

In  locating  a  claim  locators  should  exercise  great  care  in  marking  the  cor- 
ners of  same,  and  should  describe  the  corners  with  reference  to  some  promi- 
nent natural  object  or  landmark — as  a  tree  or  rock  on  the  claim — that  is,  give 
the  approximate  direction  and  distance  of  each  corner  from  said  landmark. 
Declarations  of  location  of  coal  claims  are  recorded  in  the  same  manner  as 
like  notices  for  other  mining  claims,  and  the  same  fees  are  charged.  (See  Act 
No.  624.) 

The  mining  recorder  will  as  soon  as  possible  after  recording  a  declaration  of 
location  of  a  coal  claim  forward  a  copy  of  same  to  the  Chief  of  the  Bureau  of 
Public  Lands. 

6.  Manner  of  acquiring  title. — An  application  to  purchase  coal  land  must 
be  filed  with  the  Chief  of  the  Bureau  of  Public  Lands  within  one  year  from 
the  date  of  filing  a  declaration  of  location  therefor  with  the  mining  recorder. 

The  first  step  in  the  procedure  for  acquiring  title  is  the  filing  with  the  Chief 
of  the  Bureau  of  Public  Lands  of  an  application  for  survey  of  the  laud. 
(Form  No.  2  should  be  used  in  making  this  application.)  The  survey  is  made 
under  the  directions  of  the  Chief  of  the  Bureau  of  Public  Lands,  at  applicant's 
expense.  The  Government  will  take  no  action  on  an  application  for  survey 
until  the  estimated  cost  of  making  same  is  deposited  with  the  Chief  of  the 
Bureau  of  Public  Lands. 

After  a  claim  has  been  properly  surveyed  and  claimant  has  received  a  plat 
thereof  and  the  field  notes  of  survey,  he  should  file  his  application  for  a  patent 
(using  form  No.  3),  together  with  a  copy  of  the  plat  and  field  notes  of  survey, 
with  the  Chief  of  the  Bureau  of  Public  Lands.  On  the  same  date  as  that  of 
his  application  for  a  patent  claimant  should  post  in  a  conspicuous  place  on 
the  claim  a  notice  of  his  application  for  a  patent  (using  form  No.  4),  together 
with  a  copy  of  the  plat  of  the  claim,  and  should  forward  to  the  Chief  of  the 
Bureau  of  Public  Lands  an  affidavit  executed  by  two  disinterested  persons 
showing  that  said  notice  and  plat  have  been  posted.  (Form  No.  5  should  be 
used  in  executing  this  affidavit.) 

At  the  expiration  of  nine  weeks  from  the  date  of  posting  said  notice  and 
plat,  the  applicant  will  file  another  affidavit  with  the  Chief  of  the  Bureau  of 
Public  Lands  showing  that  said  notice  and  plat  have  been  posted  on  the  claim 


C60  APPENDIX   F. 

for  a  period  of  nine  weeks.  (Form  No.  6  should  be  used  in  executing  tills 
affidavit.) 

Where  the  claimant  for  a  patent  is  not  a  resident  of  or  within  the  province 
wherein  the  land  sought  to  be  purchased  is  located,  the  application  for  patent 
and  the  affidavits  required  to  be  made  by  the  claimant  for  such  patent  may 
be  made  by  his,  her,  or  its  authorized  agent,  where  said  agent  is  conversant 
with  the  facts  sought  to  be  established  by  said  affidavits. 

The  Chief  of  the  Bureau  of  Public  Lands  will  cause  a  notice  to  be  published 
in  the  newspapers  in  which  official  notices  are  published,  calling  attention  to 
each  application  for  a  patent,  and  will  cause  a  like  notice  to  be  posted  in  the 
office  of  the  secretary  of  the  province  in  which  the  land  is  located.  Said  no- 
tices will  be  published  for  a  period  of  nine  weeks. 

7.  Value  of  coal  lands. — The  price  per  hectare  is  fifty  pesos,  Philippine 
currency,  where  the  land  is  situated  more  than  fifteen  miles  from  any  com- 
pleted railroad,  available  harbor,  or  navigable  stream,  and  one  hundred  pesos, 
Philippine  currency,  per  hectare  where  the  land  is  within  fifteen  miles  of  such 
railroad,  harbor,  or  stream.    Purchasers  will  be  required  to  deposit  the  pur- 
chase price  with  the  Chief  of  the  Bureau  of  Public  Lands  at  the  time  of  filing 
the  application  to  purchase. 

8.  Adverse  claims.— Any  person  claiming  an  interest  in  land  adverse  to 
the  interest  sought  to  be  acquired  by  an  applicant  for  a  patent  thereto,  must 
file  a  notice  of  such  claim  with  the  Chief  of  the  Bureau  of  Public  Lands  prior 
to  the  expiration  of  the  period  of  publication  of  the  notice  of  application  for 
patent  above  mentioned.  And  such  person  must,  furthermore,  within  thirty 
days  after  filing  said  notice  with  the  Chief  of  the  Bureau  of  Public  Lands, 
commence  proceedings  in  a  court  of  competent  jurisdiction  to  determine  the 
question  of  the  right  of  possession,  and  prosecute  the  same  with  reasonable 
diligence  to  final  judgment;  and  a  failure  so  to  do  will  constitute  a  waiver  of 
said  adverse  claim.    (See  sec.  8,  Act  No.  1128.) 

9.  Prospecting. — The  land  may  be  thoroughly  prospected  and  coal  neces- 
sary for  tests  may  be  removed  for  that  purpose,  but  none  may  be  sold  or  used 
commercially  prior  to  issuance  of  patent. 

10.  Timber. — A  gratuitous  license  to  cut  and  use  timber  for  mining  pur- 
poses may  be  had  on  application  to  the  Bureau  of  Forestry.    Said  license  will 
be  limited  to  the  claim  on  which  the  timber  is  cut.    (See  sec.  17,  Act  No.  1148.> 

Manila,  P.  I.,  June  10,  1904. 

P.  S.  Black, 

Acting  Chief  Bureau  of  Public  Lands. 
Approved  August  22,  1904: 

Dean  C.  Worcester,  Secretary  of  the  Interior. 


Forms  for  Use  In  Proceedings  to  Aquire  Title  to  Public  Coal  Lands. 

Form  No.  1. 
Declaration  of  Location  of  Coal  Claim. 

The  undersigned  hereby  declares  and  gives  notice  that  under  the  provisions 

of  Act  No.  1128,  Philippine  Commission, has  located  a  coal  claim  in  the 

barrio  of ,  municipality  of ,  province  of ,  the  boundaries  of 


PHILIPPINE    MINING   LAWS.  CGI 

which  are  more  particularly  described  as  follows,  to  wit:  (Here  give  as  defi- 
nite a  description  as  possible  of  tbe  boundaries  of  the  claim,  having  reference 

to  monuments   erected  on  the  ground.)     And    further  declares   that 

is  over  the  age  of  twenty-one  years  and  is  a  citizen  of  the  United  States 

(or  of  the  Philippine  Islands)  and  has  never  held  nor  purchased  any  land  un- 
der the  provisions  of  said  Act,  either  as  an  individual  or  as  a  member  of  an 
association;  that  said  land  is  unoccupied  by  any  other  person,  and  contains 

valuable  deposits  of  coal,  and  that took  possession  of  the  same  on  the 

day  of ,  A.  D.  19..,  and  has  made  improvements  consisting  of 


(Signed)  Locator. 

(Post-office) 

Subscribed  and  sworn  to  before  me  this day  of ,  19. .. 

(Signature  of  official) 

(Official  title.) 

Notice. — Where  a  claim  is  located  by  an  association,  it  will  be  necessary  for 
the  locator  to  show  that  the  several  members  of  the  association  are  each  quali- 
fied to  make  a  location. 

Form  No.  2. 

Application  for  Survey  of  Coal  Claim. 

,  19... 

To  the  Chief  of  the  Bureau  of  Public  Lands,  Manila,  P.  I. 

Sir:  In  compliance  with  section  7,  Act  No.  1128,  Philippine  Commission,  I 
hereby  make  application  for  an  official  survey  of  a  coal  claim  located  by 

in  the  barrio  of   ,  municipality  of  ,  province  of   , 

and  request  that  you  will  send  me  an  estimate  of  the  amount  to  be  deposited 
in  payment  therefor,  and  after  such  deposit  shall  have  been  made,  you  will 
cause  the  said  claim  to  be  surveyed. 

Respectfully,  

Form  No.  3. 

Application  for  Patent  for  Coal  Land, 
To  the  Chief  of  the  Bureau  of  Public  Lands,  Manila,  P.  I. 

Sir:  I, ,  hereby  apply,  under  the  provisions  of  Act  No.  1128,  Philip- 
pine Commission,  an  act  relating  to  the  sale  of  public  coal  lands  in  the  Phil- 
ippine Islands,  to  purchase hectares  of  coal  land  located  in  the  barrio 

of  ,  municipality  of ,  province  of ,  and  more  particularly 

described  as  follows,  to  wit:  (Here  give  full  description.)  Which  description 
is  set  forth  in  the  official  field  notes  of  survey  of  said  tract  hereto  attached, 

dated ,  and  the  official  plat  of  survey,  a  copy  of  which  is  filed  herewith ; 

there  is  hereby  tendered pesos  in  payment  for  said  land ;  and  I  solemn- 
ly swear  that  I  am  over  the  age  of  twenty-one  years,  a  citizen  of  the  United 
States  (or  of  the  Philippine  Islands),  and  have  never  held  nor  purchased  lands 
under  said  act  either  as  an  individual  or  as  a  member  of  an  association ;  and 
I  do  further  swear  that  I  am  well  acquainted  with  the  character  of  said  de- 
scribed land,  having  frequently  passed  over  same ;  that  my  knowledge  of  said 
land  is  such  as  to  enable  me  to  testify  understandingly  with  regard  thereto ; 
that  no  portion  of  said  land  is  in  the  possession  or  occupation  of  any  other  per- 


662  APPENDIX   F. 

son,  and  that  it  contains  valuable  deposits  of  coal  and  is  chiefly  valuable  there- 
for ;  that  I  located  said  land  as  a  coal  claim  on  the day  of ,...., 

and  filed  my  notice  of  location  with  the  mining  recorder  of  the  province  of 

on  the day  of  , , 

(Signed)  

(Address) 

(Date) 

Subscribed  and  sworn  to  before  me  this day  of ,  A.  D.  19. .. 

(Signature  of  official) , 

(Official  title.) 

N.  B. — Where  the  applicant  for  a  patent  is  an  association,  evidence  must  be 
submitted  showing  that  the  members  of  the  same  are  severally  qualified  to 
purchase. 

Form  No.  4. 
Notice  of  Application  for  Patent  for  Coal  Laud. 

Notice  is  hereby  given  that  in  pursuance  of  the  provisions  of  Act  No.  1128, 

Philippine  Commission, has  located  a  coal  claim  in  the  barrio  of , 

municipality  of ,  province  of   ,  and  has  made  application  for  a 

patent  for  said  claim,  which  is  more  fully  described  as  to  metes  and  bounds 
by  the  official  plat  herewith  posted  and  by  the  field  notes  of  survey  thereof, 
now  filed  in  the  Bureau  of  Public  Lands,  which  field  notes  of  survey  describe 
the  boundaries  and  extent  of  said  claim  on  the  surface  as  follows,  to  wit: 
(Here  give  full  description.) 

Any  and  all  persons  claiming  adversely  the  said  described  land,  or  any 
portion  thereof,  are  hereby  notified  that  unless  their  adverse  claims  are  duly 
filed  according  to  law  within  nine  weeks  from  the  date  hereof  with  the  Chief 
of  the  Bureau  of  Public  Lands  at  Manila,  P.  I.,  said  claims  will  not  be  con- 
sidered by  the  Government. 

(Name  of  claimant) 

(Post-office) 

Dated  on  the  ground  this day  of ,  A.  D.  19. .. 

Form  No.  5. 
Proof  of  Posting  Notice  and  Plat  on  Coal  Claim. 

Province  of Municipality  of  

and ,  each  for  himself,  and  not  one  for  the  other,  being  first 

duly  sworn  according  to  law,  deposes  and  says,  that  he  is  over  the  age  of 

twenty-one  years,  and  was  present  on  the day  of ,  A.  D.,  19. ., 

when  a  plat  representing  the coal  claim,  and  certified  to  as  correct  by 

the  Chief  of  the  Bureau  of  Public  Lands,  and  designated  by  him  as  Coal  Claim 

No ,  together  with  a  notice  of  the  intention  of to  apply  for  a 

patent  for  said  claim  and  premises  so  platted,  was  posted  in  a  conspicuous 

place  upon  said  claim,  to  wit:    Upon  a where  the  same  could  be  easily 

seen  and  examined ;  the  notice  so  conspicuously  posted  upon  said  claim  being 
in  words  and  figures  as  follows,  to  wit: 

Notice  of  Application  for  Patent  for. Coal  Land. 

Notice  is  hereby  given  that  in  pursuance  of  the  provisions  of  Act  No.  1,128, 

Philippine  Commission, has  located  a  coal  claim  in  the  barrio  of , 

municipality  of  ,  province  of ,  and  has  made  application  for  a 


PHILIPPINE    MINING    LAWS.  G()3 

patent  for  said  claim,  which  is  more  fully  described  as  to  metes  and  bounds  by 
the  official  plat  herewith  posted  and  by  the  field  notes  of  survey  thereof  now 
filed  in  the  Bureau  of  Public  Lands,  which  field  notes  of  survey  describe  the 
boundaries  and  extent  of  said  claim  on  the  surface  as  follows,  to  wit:  (Here 
give  full  description.) 

Any  and  all  persons  claiming  adversely  the  said  described  land  or  any  por- 
tion thereof  so  described,  are  hereby  notified  that  unless  their  adverse  claims 
are  duly  filed  according  to  law  within  nine  weeks  from  the  date  hereof  with 
the  Chief  of  the  Bureau  of  Public  Lands  at  Manila,  P.  I.,  said  claim  will  not 
be  considered  by  the  Government. 

(Name  of  claimant) , 

(Post  Office) 

Dated  on  the  ground  this day  of ,  A.  D.,  19. .. 

Witness: 


(Name.) 

(Afidress.) 

(Name.) 


(Address.) 

Subscribed  and  sworn  to  before  me,  this day  of ,  A.  D.,  19. .. 

(Signature  of  official) 

(Official  title.) 

Form  No.  6. 

Proof  that  Plat  and  Notice  Remained  Posted  on  Claim  During  Period  of 

Publication. 

,  a  resident  of  the  town  of ,  province  of ,  deposes  and  says 

that  he  is  over  the  age  of  twenty-one  years,  and  that  he  is  acquainted  with 

the  coal  claim  of   ,  particularly  described  as  follows,  to  wTit:   ; 

that  the  official  plat  of  such  claim,  designated  as  such  by  the  Chief  of  the 
Bureau  of  Public  Lands,  together  with  a  notice  of  intention  to  apply  for  a 

patent  therefor,  was  posted  thereon  on  the day  of ,  A.  D.  19. .. 

as  fully  set  forth  and  described  in  the  affidavit  of and ,  dated 

the  day  of  ,  A.  D.  19..,  which  affidavit  was  duly  filed  in  the 

Bureau  of  Public  Lands  at  Manila,  P.  I. ;    and  that  the  plat  and  notice  so 
mentioned    and    described    remained   continuously    and   conspicuously    posted 

upon  said  coal  claim   from  the    day  of   ,  A.   D.   19..,  to  the 

day  of ,  A.  D.  19..,  including  the  nine  weeks'  period  during 

which  notice  of  said  application  for  patent  was  published  in  the  newspaper. 


Subscribed  and  sworn  to  before  me  this day  of ,  A.  D.  19. .. 

(Signature  of  official) 

(Official  title.) 


APPENDIX  G. 

THE  MINING  LAWS  OF  TEXAS. 


Two  mining  acts  have  been  passed  by  the  Legislature,  one  In  1889  and 
the  other  in  1895.  The  Revised  Statutes  of  1895  contain  both  of  these  acts 
and  they  are  given  in  the  following  pages.  For  the  most  part  the  Texas  min- 
ing laws  follow  the  United  States  mining  laws,  but  there  are  divergencies 
of  greater  or  less  importance. 

MINES  AND  MINING. 

Schools  lands  reserved,  except,  etc. 

Art.  3481.  All  the  public  school,  university,  asylum  and  public  lands  con- 
taining valuable  mineral  deposits  are  hereby  reserved  from  sale  or  other 
disposition,  except  as  herein  provided,  and  are  declared  free  and  open  to 
exploration  and  purchase  under  regulations  prescribed  by  law  by  citizens  of 
the  United  States  and  those  who  have  declared  their  intention  of  becoming 
such.  [Acts  of  1889,  p.  116,  §  1.] 

To  be  classified. 

Art.  3482.  It  shall  be  the  duty  of  the  commissioner  of  the  general  land 
office  to  have  a  map  made  showing  the  location  of  all  public  school,  univer- 
sity, asylum  and  public  lands  which  are  unsold ;  and  it  shall  be  the  duty  of  the 
geological  and  mineralogical  survey  to  examine  all  such  lands  as  soon  as 
practicable,  and  to  designate  such  tracts  as  are  apparently  mineral  bearing 
as  mineral  lands  for  the  purpose  of  this  title.  If  mineral  lands  are  after- 
wards claimed  to  exist  at  other  locations  than  are  so  designated,  they  shall 
also  be  examined  and  classified  accordingly.  [Ib.,  §  2.] 

Mining  districts. 

Art.  3483.  It  shall  be  the  duty  of  the  commissioner  of  the  general  land 
office  to  unite  a  suitable  number  of  these  mineral  locations  into  mining  dis- 
tricts, in  each  of  which  shall  be  a  surveyor  who  must  either  be  the  surveyor 
of  the  district  or  county  or  a  regularly  appointed  deputy,  and  an  officer  quali- 
fied to  administer  oaths.  [Ib.,  §  3.] 

Extent  of  claims. 

Art.  3484.  A  mining  claim  upon  veins  or  lodes  of  quartz  or  other  rocks 
in  places  bearing  silver,  cinnabar,  lead,  tin,  copper  or  other  valuable  metals, 
excluding  deposits  of  iron  ore,  coal,  kaolin,  baryta,  salt,  marble,  fire  clays, 
valuable  building  stones,  oil  or  natural  gas,  may  equal  but  shall  not  exceed 
one  thousand  five  hundred  feet  along  the  vein  or  lode.  No  such  claim  shall 
exceed  twenty-one  acres  in  total  area.  The  end  lines  of  each  claim  shall 
be  parallel  to  each  other,  and  all  claims  shall  be  in  the  form  of  a  parallelo- 

(G64) 


TEXAS  MINING    LAWS.  6G5 

a  or  square  unless  such  form  is  prevented  by  adjoining  rights  or  bound  n- 
ries  of  the  section  in  which  the  claim  lies.  The  locator  under  this  title  shall 
be  entitled  to  the  use  of  all  the  superficial  area  between  the  enclosing  lines 
nf  the  claim,  and  to  all  minerals  thereon  and  between  the  side  and  end 
lines  extending  downward  vertically  until  the  rights  secured  by  posting  are 
forfeited  as  provided,  and  in  all  conflicts  priority  of  location  shall  decide, 
fib..  §4.] 

Notice  to  be  posted  by  locator. 

Art.  34S5.  The  locators  of  any  mining  claim  shall  post  up  at  the  center  of 
•me  of  the  end  lines  of  the  same  a  written  notice,  stating  the  name  of  the 
locator  and  of  the  claim,  and  the  date  of  posting,  and  describe  the  claim  by 
giving  the  number  of  feet  in  length  and  width,  and  the  direction  the  claim 
lies  in  length  from  the  notice,  together  with  the  section,  if  known,  and  the 
county ;  and  shall  place  stone  monuments  at  the  four  corners,  and  other- 
wise described  corners  so  that  they  can  be  readily  found.  The  notice  shall 
be  placed  in  a  conspicuous  place  so  as  to  be  readily  seen.  [Ib.,  §  5.] 

Preliminaries  to  application. 

Art.  34S6.  The  locators  shall,  within  three  months  after  the  date  of  posting 
the  required  notice,  sink  a  shaft  at  least  ten  feet  in  depth  by  four  feet  square, 
or  a  tunnel  of  the  same  dimensions  ten  feet  in  length,  or  an  open  cross  cut 
twenty  feet  in  length,  four  feet  or  more  wide  and  ten  feet  in  depth  at  its  shal- 
lowest part,  and  shall  within  said  time  file  with  the  county  surveyor  or  the  dis- 
trict surveyor  of  the  county,  as  the  case  may  be,  an  application  in  writing  for 
the  survey  of  their  claim,  which  application  shall  be  accompanied  with  a  fee  of 
twenty  dollars,  unless  its  tender  is  waived,  and  also  with  an  affidavit  attached 
thereto  that  the  required  work,  signifying  it,  has  been  done,  and  that  the  lo- 
cators have  found  valuable  mineral  on  the  claim ;  and  the  affidavit  shall  state 
the  date  of  the  first  posting  of  the  notice  on  the  claim  by  the  applicants ;  and, 
further,  that  the  notice  has  not  been  post-dated  or  changed  in  its  date.  Upon 
receiving  said  application  and  fee  the  surveyor  shall  record  the  application,  to- 
gether with  the  affidavit,  and  he  shall  thereupon  forthwith  proceed  to  survey  said 
claim  and  forward  the  field-notes  to  the  commissioner  of  the  general  land  office 
within  thirty  days  after  filing  the  application,  in  default  of  which  he  shall 
pay  the  aggrieved  party  such  damages  as  he  may  sustain,  and  it  shall  be 
the  duty  of  the  applicants  to  see  that  the  field-notes  are  so  returned.  The 
fee  of  twenty  dollars  shall  cover  all  the  services  provided  for  in  this  article. 
In  all  other  cases  enumerated  in  this  article  the  fee  shall  be  the  same  allow- 
ed county  clerks  for  similar  services.  [Ib.,  §  6.] 

How  payments  to  the  state  to  be  regulated. 

Art.  3487.  Annually  after  the  filing  of  the  application  for  a  survey  as 
herein  before  provided,  the  claimant  shall,  until  after  application  is  made  for 
a  patent  as  herein  before  provided,  do  one  hundred  dollars  worth  of  work  in 
developing  each  claim;  but  where  claims  adjoin,  the  amount  of  work  may 
be  done  on  one  for  all  belonging  to  the  same  party.  The  value  of  such  shall 
be  estimated  at  what  it  could  be  contracted  for  at  a  fair  cash  price,  but  the 
cost  of  tools  and  implements  and  the  expense  of  going  to  and  returning  from 
the  mine  shall  not  be  included  in  said  estimate.  And  shall  in  addition  to 
this  amount  of  work,  annually  pay  to  the  treasurer  of  the  state  the  sum  of 
fifty  dollars  on  each  and  every  claim  filed  upon,  which  amount  shall  be  credit- 
ed to  the  fund  to  which  the  land  belongs  upon  which  the  claim  is  located; 
provided,  that  all  amounts  so  paid  shall  be  a  credit  upon  the  final  payment 


666  APPENDIX    G. 

for  such  land  provided  for  in  article  3489  of  this  title.  Within  one  month 
after  the  expiration  of  each  year,  the  owner  shall  make  and  file  with  the 
surveyor  his  affidavit,  setting  forth  specifically  what  the  work  consists  of  in 
detail  and  the  value  thereof,  and  shall  also  file  with  the  surveyor  at  the 
same  time  the  receipt  of  the  state  treasurer  for  the  amount  of  cash  payment 
provided  for  herein  or  a  certified  copy  thereof.  Upon  the  failure  of  any  one 
of  several  co-owners  to  contribute  his  proportion  of  the  expenditures  re- 
quired in  this  title  within  the.  necessary  time,  the  co-owners  who  have  per- 
formed the  labor  or  made  the  improvements,  or  paid  the  fees  or  other  ex- 
penditures required  in  this  title,  may,  at  the  expiration  of  the  year  in  which 
the  same  is  to  be  done,  give  notice  in  writing  or  notice  by  publication  in  a 
newspaper  published  in  the  county  where  the  mining  is,  if  any;  if  none  in 
such  county,  then  in  the  newspaper  published  nearest  to  the  mine,  for  at 
least  once  a  week  for  ninety  days.  If  after  such  personal  notice  in  writing 
or  by  publication  such  delinquent  should  fail  or  refuse  to  contribute  his  pro- 
portion of  the  expenditure  required  by  this  title,  his  interest  in  the  claim 
shall  become  the  property  of  his  co-workers  who  have  made  the  required 
expenditures.  An  affidavit  by  the  co-owners  forfeiting  the  interest  of  such 
delinquent  shall,  when  recorded  in  the  office  of  the  proper  surveyor,  be  suf- 
ficient evidence  of  such  delinquency.  [Ib.,  7.] 

Ownership  of  lodes  in  case  of  tunnel,  etc. 

Art.  3488.  When  a  tunnel  is  run  for  the  development  of  a  vein  or  lode, 
or  for  the  discovery  of  mines,  the  owner  of  such  tunnel  shall  have  the  I-I^IL 
of  possession  of  all  veins  or  lodes  within  two  thousand  feet  from  the  face  of 
such  claim,  on  the  line  thereof,  not  previously  known  to  exist,  discovered  in 
such  tunnel,  to  the  same  extent  as  if  discovered  from  the  surface ;  and  loca- 
tions on  the  line  of  such  tunnel  of  veins  or  lodes  not  appearing  on  the  surface, 
made  by  other  parties  after  the  commencement  of  the  tunnel  and  while  the 
same  is  being  prosecuted  with  reasonable  diligence,  shall  be  invalid,  but  fail- 
ure to  prosecute  the  work  in  the  tunnel  for  six  months  shall  be  considered  as 
an  abandonment  of  the  right  of  all  undiscovered  veins  on  the  line  of  said  tun- 
nel. [Ib.,  §  8.] 

Patents. 

Art.  3489.  Whenever  the  owners  of  any  mining  claim  shall  desire  a  patent, 
they  shall,  within  five  years  after  the  filing  of  the  application  for  survey1, 
file  their  application  for  a  patent  upon  their  claim  with  the  commissioner  of 
the  general  land  office,  accompanied  with  the  receipt  of  the  state  treasurer, 
showing  that  twenty-five  dollars  per  acre  has  been  paid  by  the  applicant  for 
patent  to  the  state  treasurer.  No  patent  shall  be  issued  in  any  case  until 
the  expiration  of  sixty  days  from  the  filing  of  the  application.  Upon  filing 
said  application  the  applicant  shall  cause  to  be  published  for  four  successive- 
weeks,  one  insertion  each  week,  in  some  newspaper  published  in  the  county 
in  which  the  mine  is  situated,  if  there  be  any,  if  not,  then  in  some  newspaper 
published  in  the  nearest  county  to  the  mine  in  which  a  newspaper  is  publish- 
ed, a  notice  stating  the  fact  that  application  has  been  filed  for  patent  on  the 
claim  (or  claims),  describing  them  clearly.  A  copy  of  the  printed  notice  with 
affidavit  that  it  has  been  published  as  required  by  this  article,  and  that  all 
the  requirements  of  this  title  have  been  complied  with,  shall  be  filed  with 
the  commissioner  of  the  general  land  office  before  the  patent  shall  issue. 
After  the  expiration  of  thirty  days  after  the  last  insertion  of  said  notice 
patent  shall  issue  unless  protest  has  been  filed.  [Ib.,  §  9.] 


TEXAS   MINING   LAWS.  60" 

Patents  not  included  in  article  3495. 

Art.  3490.  Any  person  shall  have  the  right  to  purchase  and  obtain  patent. 
by  compliance  with  this  article,  on  any  public  school,  university,  asylum  and 
public  lands,  containing  valuable  deposits  of  kaolin,  baryta,  salt,  marble,  fire 
clay,  iron  ore,  coal,  oil,  natural  gas,  gypsum,  nitrates,  mineral  paints,  as- 
bestos, marls,  natural  cement,  clay,  onyx,  mica,  precious  stones,  and  stone 
valuable  for  ornamental  purposes,  or  other  valuable  building  material,  in 
lojral  subdivisions  in  quantity  not  exceeding  one  section ;  provided,  that 
where  any  such  parties  shall  have  heretofore  expended  or  shall  hereafter  ex- 
pend, five  thousand  dollars  in  developing  the  aforesaid  mineral  resources  of 
any  of  said  lands,  such  parties  shall  have  the  right  to  buy  one  additional  sec- 
tion and  no  more,  and  to  include  in  the  purchase  any  section,  or  part  thereof, 
on  which  the  work  may  have  been  done.  The  lands  so  purchased  may  be 
in  different  sections,  and  all  embraced  in  one  or  more  obligations  not  to  ex- 
ceed the  quantity  stated.  The  purchaser  shall  pay  not  less  than  fifteen  dollars 
per  acre  where  the  lands  shall  be  situated  ten  miles  or  less  of  [from]  any  rail- 
road in  operation,  and  not  less  than  ten  dollars  per  acre  where  the  land  is  over- 
ten  miles  from  such  railroad ;  one-tenth  of  the  purchase  money  to  be  paid  in 
cash  to  the  state  treasurer,  and  the  purchaser  shall  file  the  treasurer's  re- 
ceipt with  the  commissioner  of  the  general  land  office,  together  with  an  ob- 
ligation to  pay  the  state  of  Texas  the  remainder  in  nine  equal  annual  install- 
ments, with  interest  at  six  per  cent  per  annum  from  date,  subject  to  a  for- 
feiture as  in  other  cases.  And  all  said  lands  are  reserved  from  sale  or  other 
disposition  than  under  this  title;  and  where  application  is  made  to  buy  any 
of  the  lands  herein  named,  except  under  this  title,  the  purchaser  shall  swear 
that  there  are  none  of  the  minerals  named  in  this  title  on  said  lands,  so  far 
as  he  knows  or  has  reason  to  believe,  or  does  believe;  provided,  further, 
that  any  party  herein  before  named  who  shall,  prior  to  the  passage  of  this 
article  have  been  the  first  to  work  on  said  lands  for  the  development  of  said 
mineral  resources,  and  who  has  abandoned  said  work,  and  is  qualified  at 
passage  of  this  article  to  buy,  shall  have  a  prior  preference  right  of  doing 
so  for  thirty  days  after  this  article  goes  into  effect;  provided,  further,  this 
article  shall  not  authorize  the  sale  of  lands  containing  valuable  deposits  of 
gold,  silver,  lead,  cinnabar,  copper,  or  other  valuable  metal.  [Ib.,  §  10 
(Amend.,  1893,  p.  100).] 

Contesting  issuance  of  patent. 

Art.  3491.  Any  person  desiring  to  contest  the  issuance  of  a  patent  may 
do  so  by  filing  with  the  commissioner  of  the  general  land  office  a  protest  set- 
ting forth  the  grounds  of  objection  generally,  and  that  protestant  has  an 
interest  in  the  subject-matter,  which  protest  shall  also  state  that  the  same  is 
presented  in  good  faith  and  not  to  injure  or  delay  the  applicants,  or  any  of 
them,  and  the  same  shall  be  verified  by  affidavit;  whereupon  it  shall  be  the 
duty  of  the  commissioner  to  withhold  patent  until  the  controversy  is  ended  ; 
provided,  that  if  the  protestant  shall  not,  within  thirty  days  after  the  filing 
of  his  protest,  institute  suit  in  the  court  having  jurisdiction  thereof  in  the 
county  where  the  claims  are  located,  his  protest  shall  constitute  no  further 
barrier  to  the  issuance  of  a  patent.  A  certified  copy  of  the  petition  or  a  cer- 
tificate of  the  clerk  of  the  court  where  suit  is  pending  shall  be  sufficient  evi- 
dence to  the  commissioner  of  the  pendency  of  the  suit  and  of  the  date  of  filing 
said  suit.  When  the  land  in  controversy  lies  partly  in  two  counties,  suit  may 
be  brought  in  either.  More  than  one  claim  shall  not  be  embraced  in  the  same 


<)08  APPENDIX    G. 

patent  or  application.     The  suits  here  provided  for  shall  be  entitled  to  pre- 
cedence of  trial  on  the  docket.    [Ib.,  §  11.] 

Location  on  land  disposed  of  since  April  14,   1883. 

Art.  3492.  When  a  location  has  been  made  and  land  disposed  of  by 
the  State  since  the  passage  of  an  act  for  disposition  of  minerals  on  the  land 
embraced  in  article  3481  of  this  title,  if  such  location  was  made  subsequent 
to  the  disposition  by  the  state  of  such  lands,  and  the  locator  or  his  assignees 
have  not  abandoned  said  claim,  but  are  working  it  in  good  faith,  the  locator 
.and  his  assignees  shall  nevertheless  be  entitled  to  the  mineral  and  to  the  use 
of  the  superficial  area  as  in  other  cases;  and  if  the  case  is  such  that  the 
fee  in  the  land  can  not  pass  by  patent,  a  patent  may  issue  to  all  the  min- 
erals in  the  claims,  and  shall  be  a  license  from  the  state  to  enter  upon  and 
work  said  claim  and  extract  the  mineral  therefrom.  In  cases  provided  for 
in  this  article  when  the  fee  does  not  pass,  the  price  shall  be  twenty  dollars 
per  acre,  and  the  locator  or  his  assignee  shall  in  addition,  pay  to  the  owner 
of  the  land  in  fee  the  fair  value  of  the  land  so  taken  up  by  his  claim, 
.and  roads  and  fences  necessary  to  give  him  ingress  and  egress  thereto,  and 
be  liable  for  any  damages  which  may  result  to  owner  of  the  land  in  fee.  All 
other  provisions  of  this  title  shall  apply  to  said  location.  (The  act  referred 
to  is  the  act  of  1883,  page  4.)  [Ib.,  §  12.] 

Forfeiture  of  claims,  etc. 

Art.  3493.  All  claims  upon  which  patent  has  not  been  applied  for  within 
five  years  next  after  the  application  for  survey,  or  which  have  not  been  sur- 
veyed and  the  field-notes  returned  to  the  general  land  office  within  the 
time  prescribed  therefor  as  herein  before  provided,  or  upon  which  the  assess- 
ment work  has  not  been  done,  an  affidavit  therefor  filed  as  provided  by  this 
title,  shall  be  and  are  declared  forfeited  without  judicial  action  of  any  kind 
and  subject  to  location  as  originally,  but  not  by  any  one  interested  in  the 
claim  at  the  time  of  forfeiture ;  and  any  location  for  or  on  behalf  of  any 
such  party  shall  be  wholly  void.  Whenever  any  such  claim  shall  be  re-locat- 
ed, the  locators  and  each  of  them  shall  make  affidavit  that  the  location  is 
made  without  any  contract  or  agreement  of  any  kind  that  any  of  the  parties 
owning  an  interest  in  the  location  before  re-location  has  or  is  to  have  any 
interest  in  the  same.  In  all  other  cases  where  affidavit  is  required  by  this 
title  it  may  be  made  by  one  or  more  of  the  parties  cognizant  of  the  facts. 
[Ib.,  §  13.] 

He-location  of  forfeited  claims. 

Art.  3494.  No  claim  which  has  been  forfeited  for  any  cause  shall  be  sub- 
ject to  re-location  for  a  period  of  thirty  days  next  thereafter;  and  the  par- 
ty owning  the  same  may  apply  to  the  land  commissioner  within  that  time 
for  relief,  and  if  it  appear  to  him  from  the  proofs  submitted  that  the  for- 
feiture was  not  occasioned  by  the  negligence  of  the  owner,  but  by  circum- 
stances which  he  could  riot  reasonably  control,  the  commissioner  may,  with- 
in that  time,  in  his  discretion,  grant  relief  against  the  forfeiture,  and  if 
he  grant  such  relief  he  shall  at  once  forward  his  order  to  that  effect  to 
the  surveyor,  who  shall  file  the  same  for  record  in  his  office.  [Ib.,  §  14.] 

Reservation  of  mineral  in  sale  of  lands. 

Art.  3495.  Whenever  any  application  shill  be  made  to  buy  or  obtain  title  to 
any  of  the  lands  embraced  in  article  3481  of  this  title,  except  where  the  ap- 
plication is  made  under  this  title,  the  applicant  shall  make  oath  that  there 


TEXAS   MINING   LAWS. 

is  not,  to  the  best  of  his  knowledge  and  belief,  any  of  the  mineral  embraced 
in  this  title  thereon,  and  when  the  commissioner  has  any  doubt  in  relation 
to  the  matter  he  shall  forbear  action  until  he  is  satisfied.  And  any  sale  or 
disposition  of  said  lands  shall  be  understood  to  be  with  a  reservation  of  the 
mineral  thereof  to  be  subject  to  location  as  herein  provided.  [Ib.,  §  15.] 

Placer  mining:. 

Art.  3496.  Claims  usually  called  placers,  including  all  forms  of  metallic 
deposits,  excepting  veins  of  quartz  or  rock  in  place,  shall  be  subject  to  entry 
and  patent  under  like  circumstances  and  conditions,  and  upon  similar  pro- 
ceedings as  are  provided  for  vein  or  lode  claims.  All  placer  claims  located 
shall  conform  as  near  as  practicable  with  existing  surveys  and  their  sub- 
divisions, and  no  such  location  shall  include  more  than  forty  acres  for  each 
individual  claimant,  and  shall  not  exceed  three  hundred  and  twenty  acres 
for  any  association  of  persons.  The  price  which  shall  be  paid  for  such 
placer  shall  not  be  less  than  ten  dollars  per  acre,  together  with  all  costs  of 
proceedings  as  before  provided.  [Ib.,  §  16.] 

What  may  be  included  in  patent. 

Art.  3497.  When  non-mineral  land,  not  contiguous  to  the  vein  or  lode,  Is- 
used  by  the  prospector  of  such  vein  or  lode  for  mining  or  milling  purposes, 
such  non-adjacent  surface  ground  may  be  embraced  and  included  in  an  ap- 
plication for  a  patent  for  such  vein  or  lode,  and  the  same  may  be  patented 
therewith  subject  to  the  same  preliminary  requirements  as  to  survey  and 
notice  as  are  applicable  to  veins  or  lodes;  but  no  location  of  such  non-ad- 
jacent lands  shall  exceed  ten  acres,  and  payment  for  the  same  must  be  made 
at  the  same  rate  as  fixed  by  this  title  for  the  superficies  of  the  lode.  The 
owner  of  a  quartz  mill  or  reduction  works,  not  owning  a  mine  in  connection 
therewith,  may  also  receive  a  patent  for  a  mill  site  as  provided  in  this  article. 
[Ib.,  §  17.] 

Timber — Taking  timber  on  mining  lands. 

Art.  3498.  Any  owner  or  worker  of  mining  claim  under  this  title  is  au- 
thorized to  fell  and  remove  for  building  and  mining  purposes  any  timber  or 
any  trees  growing  or  being  upon  unoccupied  lands  as  described  in  article 
3481,  said  lands  being  mineral  and  subject  to  entry  only  as  mineral  lands, 
under  such  rules  and  regulations  as  may  be  prescribed  for  the  protection  of 
timber  and  under-growth  upon  such  lands  and  for  other  purposes.  [Ib.,  §  18.] 

Reserved  lands  opened  to  exploration  and  purchase,  etc. 

Art.  3498a.  All  public  school,  university,  asylum  and  public  lands  special- 
ly included  under  the  operation  of  this  title,  all  the  lands  now  owned  by  the 
state  situated  within  the  reservation  known  as  the  "Pacific  Reservation," 
which  were  taken  off  the  market  and  reserved  from  sale  by  an  act  approved 
January  22,  1883,  containing  valuable  mineral  deposits,  are  hereby  reserved 
from  sale  or  other  disposition,  except  as  herein  provided,  and  are  declared 
free  and  open  to  exploration  and  purchase  under  regulations  prescribed  by 
law,  by  citizens  of  the  United  States  and  those  who  have  declared  their  in- 
tention of  becoming  such;  provided,  that  all  who  have  located  and  recorded 
valid  claims  under  previous  valid  laws  and  have  not  abandoned  same,  but 
are  engaged  in  developing  same,  shall  have  a  prior  preference  right  for  nine- 
ty days  after  the  passage  of  this  title  in  which  to  re-locate  same  under  this 
title.  [Acts  1895,  p.  197.] 


670  APPENDIX   G. 

Commissioner  to  map  lands. 

Art.  3498b.  It  shall  be  the  duty  of  the  commissioner  of  the  general  land 
office  immediately  upon  the  passage  of  this  title  to  have  a  map  made  showing 
the  location  of  all  public  school,  university,  asylum  and  public  lands  which 
are  unsold  at  that  date,  and  it  shall  be  the  duty  of  the  geological  and 
m inera logical  survey  to  examine  all  such  lands  as  soon  as  practicable  there- 
after, and  to  designate  such  tracts  as  are  apparently  mineral  bearing  as  min- 
eral lands  for  the  purpose  of  this  title.  If  mineral  lands  are  afterwards 
claimed  to  exist  at  other  locations  than  are  so  designated  they  shall  also  be 
examined  and  classified  accordingly.  [Ib.] 

Mining  districts   created. 

Art.  3498c.  It  shall  be  the  duty  of  the  commissioner  of  the  general  land 
office  to  unite  a  suitable  number  of  these  mineral  locations  into  mining  dis- 
tricts, in  each  of  which  shall  be  a  surveyor,  who  must  either  be  the  sur- 
veyor of  the  district  or  county  or  a  regular  appointed  deputy  and  an  officer 
qualified  to  administer  oaths.  [Ib.] 

Mining  claims  limited,  etc. 

Art.  3498d.  A  mining  claim  upon  veins  or  lodes  of  quartz  or  other  rocks 
in  place  bearing  silver,  gold,  cinnabar,  lead,  tin,  copper  and  other  valuable 
metals,  excluding  deposits  of  kaolin,  baryta,  salt,  marble,  fire  clay,  iron  ore, 
coal,  oil,  natural  gas,  gypsum,  nitrates,  mineral  paints,  asbestos,  marls,  nat- 
ural cement,  clay,  onyx,  mica,  precious  stones  or  any  other  non-metallic  min- 
eral and  stone  valuable  for  ornamental  or  building  purposes  or  other  valu- 
able building  material,  may  equal  but  shall  not  exceed  one  thousand  five 
hundred  feet  along  the  mine  or  vein  or  lode.  No  such  claim  shall  exceed 
twenty-one  acres  in  total  area.  The  end  lines  of  each  claim  shall  be  parallel 
to  each  other,  and  all  claims  shall  be  in  the  form  of  a  parallelogram  or  square, 
unless  such  form  is  prevented  by  adjoining  rights  or  boundaries  of  the  section 
in  which  the  claim  lies.  The  locator  under  this  title  shall  be  entitled  to  the 
use  of  all  the  superficial  area  between  the  enclosing  lines  of  the  claim,  and  to 
all  minerals  thereon,  and  between  the  side  and  end  lines,  extending  downwards 
vertically,  until  the  rights  secured  by  posting  are  forfeited  as  provided ;  and  in 
all  conflicts  priority  of  location. shall  decide.  [Ib.] 

.Locator  to  post  claim. 

Art.  3498e.  The  locators  of  any  mining  claim  shall  post  up  at  the  center 
of  one  of  the  end  lines  of  the  same  a  written  notice,  stating  the  name  of  the 
location  and  of  the  claim  and  date  of  posting,  and  describe  the  claim  by  giv- 
ing the  number  of  feet  in  length  and  width  and  the  direction  the  claim  lies 
in  length  from  the  notice,  together  with  the  section,  if  known,  and  the  coun- 
ty, and  shall  place  stone  monuments  at  the  four  corners  and  otherwise  de- 
scribe the  corners  so  that  they  can  be  readily  found.  The  notice  shall  be 
placed  in  a  conspicuous  place  so  it  can  be  readily  seen.  [Ib.] 

Application  for  survey  of  claim — Requisites  of. 

Art.  3498f.  The  locator  shall,  within  three  months  after  the  date  of  post- 
ing the  required  notice,  sink  a  shaft  at  least  ten  feet  in  depth  by  four  feet 
square,  or  a  tunnel  of  the  same  dimensions  ten  feet  in  length,  or  an  open 
cross  cut  twenty  feet  in  length,  four  feet  or  more  wide  and  ten  feet  in  depth 
at  its  shallowest  part,  and  shall  within  said  time  file  with  the  county  sur- 
veyor or  the  district  surveyor  of  the  county,  as  the  case  may  be,  an  applica- 
tion in  writing  for  the  survey  of  the  claim,  which  application  shall  be  ao 


TEXAS    MIXING   LAWS.  671 

companied  by  a  fee  of  twenty  dollars,  unless  its  tender  is  waived,  arid  also 
with  an  affidavit  attached  thereto  that  the  required  work,  signifying  that  it 
has  been  done,  and  that  the  locators  have  found  valuable  minerals  on  the. 
claim ;  and  the  affidavit  shall  state  the  date  of  the  first  posting  of  the  no- 
tice on  the  claim  by  the  applicants,  and  further,  that  the  notice  has  not  been 
posted-dated  or  changed  in  its  date.  Upon  receiving  said  application  and  fee 
the  surveyor  shall  record  the  application,  together  with  the  affidavit,  and 
he  shall  thereupon  forthwith  proceed  to  survey  said  claim,  and  forward  the 
field-notes  to  the  commissioner  of  the  general  land  office  within  thirty  days 
after  filing  the  application,  in  default  of  which  he  shall  pay  the  aggrieved 
party  such  damages  as  he  may  sustain,  and  in  addition  thereto  shall  be 
deemed  guilty  of  a  misdemeanor,  and  on  conviction  fined  not  less  than  twenty 
dollars  nor  more  than  one  hundred  dollars,  and  it  shall  be  the  duty  of  the 
applicant  to  see  that  the  field-notes  are  so  returned.  The  fee  of  twenty  dol- 
lars shall  cover  all  the  services  provided  for  in  this  title.  In  all  other  cases 
enumerated  in  this  title  the  fee  shall  be  the  same  allowed  county  clerks  for 
similar  services.  [It*.] 

Claimant  must  do  what,  pending  patent. 

Art.  3498g.  Annually  after  the  filing  of  the  application  for  a  survey  as 
hereinbefore  provided,  the  claimant  shall,  until  after  the  application  is  made 
for  a  patent,  as  hereinafter  provided,  do  one  hundred  dollars'  worth  in  de- 
veloping each  claim;  but  where  claims  adjoin,  the  amount  of  work  may  be 
done  on  one  for  all  belonging  to  the  same  party.  The  value  of  such  shall 
be  estimated  at  what  it  could  be  contracted  for  at  a  fair  cash  price,  but  the 
cost  of  tools  and  implements  and  the  expense  of  going  to  and  returning  from 
the  mine  shall  not  be  included  in  said  estimate.  Within  one  month  after  the 
expiration  of  each  year  the  owner  shall  make  and  file  with  the  surveyor  his 
affidavit  setting  forth  specifically  what  the  work  consists  of  in  detail,  and 
the  value  thereof.  Upon  the  failure  of  any  one  of  several  owners  to  con- 
tribute his  proportion  of  the  expenditures  required  in  this  title  within  the 
necessary  time,  the  co-owners  who  have  performed  the  labor  or  made  the  im- 
provements or  paid  the  fees  or  other  expenditures  required  in  this  title, 
may  at  the  expiration  of  the  year  in  which  the  same  is  to  be  done,  give  no- 
tice in  writing  or  notice  by  publication  in  a  newspaper  published  in  the  coun- 
ty where  the  claim  is,  if  any ;  if  none  in  such  county,  then  in  the  newspaper 
published  nearest  the  mine,  for  at  least  once  a  week  for  ninety  days.  If 
after  such  personal  notice  in  writing  or  by  publication  such  delinquent  shall 
fail  or  refuse  to  contribute  his  proportion  of  the  expenditure  required  by 
this  title,  his  interest  in  the  claim  shall  become  the  property  of  his  co-workers 
who  have  made  the  required  expenditures.  An  affidavit  by  the  co-owners 
forfeiting  the  interest  of  such  delinquent  shall,  when  recorded  in  the  office 
of  the  proper  surveyor,  be  sufficient  evidence  of  such  delinquency.  [Ib.] 

Rights  accruing  to  the  claimant. 

Art.  349Sh.  When  a  tunnel  is  run  for  the  development  of  a  vein  or  lode 
or  for  the  discovery  of  mines,  the  owner  of  such  tunnel  shall  have  the  right 
of  possession  of  all  veins  or  lodes  within  two  thousand  feet  of  the  face  of 
such  claim  on  the  line  thereof,  not  previously  known  to  exist,  discovered  in 
such  tunnel  to  the  same  extent  as  if  discovered  from  the  surface;  and 
locations  on  the  line  of  such  tunnel  of  veins  or  lodes  not  appearing  on  the 
surface  made  by  other  parties  after  the  commencement  of  the  tunnel  and 
while  the  same  is  being  prosecuted  with  reasonable  diligence  shall  be  in- 


672  APPENDIX    G. 

valid ;  but  failure  to  prosecute  the  work  in  the  tunnel  for  six  month?* 
shall  be  considered  as  an  abandonment  of  the  right  of  all  undiscovered  veins 
on  the  line  of  said  tunnel.  [Ib.] 

Conditions  precedent  to  issue  of  patent. 

Art.  3498i.  Whenever  the  owners  of  any  mining  claim  shall  desire  a 
patent,  they  shall,  within  five  years  after  filing  of  the  application  for  sur- 
vey, file  their  application  for  a  patent  upon  their  claim  with  the  commissioner 
of  the  general  land  office,  accompanied  by  the  receipt  of  the  state  treasurer 
showing  that  twenty-five  dollars  per  acre  has  been  paid  by  the  applicant  for 
patent  to  the  state  treasurer.  Whereupon  such  patent  shall  issue  unless 
protest  is  filed  as  hereinafter  provided  for  in  article  3498k.  [Ib.] 

Right  of  purchase. 

Art  3498J.  Within  twelve  months  after  the  filing  of  the  aflidavit  herein- 
after provided  for,  any  person  or  association  of  persons  qualified  as  re- 
quired by  article  3498a,  shall  have  the  right  to  purchase  and  obtain  patent 
by  compliance  with  this  title,  or  any  of  the  lands  of  the  state  which  are  spec- 
ified or  included  in  article  3498a,  containing  valuable  deposits  of  kaolin,  baryta, 
salt,  marble,  fire  clay,  iron  ore,  coal,  oil,  natural  gas,  gypsum,  nitrates,  min- 
eral paints,  asbestos,  marl,  natural  cement,  clay,  onyx,  mica,  precious  stones 
or  any  other  non-metallic  mineral  and  stones  valuable  for  ornamental  or 
building  purposes  or  other  valuable  building  material,  in  legal  subdivisions, 
in  quantity  not  exceeding  one  section;  provided,  that  where  any  such  par- 
ties shall  have  heretofore  expended,  or  shall  hereafter  expend,  five  thousand 
dollars  in  developing  the  aforesaid  mineral  resources  of  any  of  said  lands, 
such  party  shall  have  the  right  to  buy  one  additional  section  and  no  more, 
and  to  include  in  the  purchase  any  section  or  part  thereof  on  which  the  work 
may  have  been  done.  The  land  so  purchased  may  be  in  different  sections, 
and  all  embraced  in  one  or  more  obligations,  not  to  exceed  the  quantity 
stated.  The  purchaser  shall  pay  not  less  than  fifteen  dollars  per  acre  where 
the  land  shall  be  situated  ten  miles  or  less  of  [from]  any  railroad  in  operation, 
and  not  less  than  ten  dollars  per  acre  where  the  land  is  over  ten  miles  from 
such  railroad,  one  tenth  of  the  purchase  money  to  be  paid  in  cash  to  the 
state  treasurer  on  or  before  the  expiration  of  the  twelve  months  aforesaid ; 
and  the  purchasers  shall  file  the  treasurer's  receipt  with  the  commissioner  of 
the  general  land  office,  together  with  an  obligation  to  pay  the  state  of  Texas 
the  remainder  in  nine  equal  annual  installments,  with  interest  at  four  per 
cent  per  annum  from  date,  subject  to  forfeiture  as  in  other  cases;  and  all 
said  lands  are  reserved  from  sale  or  other  disposition  than  under  this  title ; 
and  where  application  is  made  to  buy  any  of  the  lands  herein  named  ex- 
cept under  this  title,  the  purchaser  shall  swear  that  there  are  none  of  the 
minerals  named  in  this  title  on  said  lands,  so  far  as  he  knows  or  has  reason 
to  believe  or  does  believe;  provided,  further,  that  any  party  hereinbefore 
named,  who  shall  prior  to  the  passage  of  this  title  have  been  the  first  to 
work  on  said  lands  for  the  development  of  said  mineral  resources  and  who 
has  not  abandoned  said  work,  and  is  qualified  at  passage  of  this  title  to 
buy,  shall  have  a  prior  preference  right  of  doing  so  for  thirty  days  after 
this  title  goes  into  effect;  provided,  further,  this  article  shall  not  authorize 
the  sale  of  lands  containing  valuable  deposits  of  gold,  silver,  lead,  cin- 
nabar, copper  or  other  valuable  metal ;  provided,  further,  that  any  per- 
son desiring  to  acquire  any  lands  under  the  provisions  of  this  article  shall 
have  the  right  to  prospect  said  land  for  a  period  of  twelve  months  before 


TEXAS   MINING   LAWS. 

making  any  payment  thereon,  upon  condition  that  said  prospector  shall  file 
with  the  proper  surveyor  his  affidavit  in  writing,  setting  forth  that  he  has 
gone  upon  the  land  in  good  faith  with  the  intention  of  purchasing  the  same 
under  the  provisions  of  this  article,  and  in  said  affidavit  give  a  reasonable 
description  of  said  land.  After  the  filing  of  said  affidavit  the  said  surveyor 
shall  immediately  forward  same  to  the  commissioner  of  the  general  land  office, 
who  shall  take  said  section  off  the  market  until  the  expiration  of  said  twelve 
months  after  the  filing  of  said  affidavit  with  the  surveyor.  [Ib.] 

Contest   of  patent. 

Art.  3498k.  Any  person  desiring  to  contest  the  issuance  of  patent  may  do 
so  by  filing  with  the  commissioner  of  the  general  land  office  a  protest  set- 
ting forth  the  grounds  of  objection  generally,  and  that  protestant  has  an  in- 
terest in  the  subject  matter,  which  protest  shall  also  state  that  the  same  is 
presented  in  good  faith  and  not  to  injure  or  delay  the  applicants  or  any  of 
them,  and  the  same  shall  be  verified  by  affidavit.  Whereupon  it  shall  be 
the  duty  of  the  commissioner  to  withhold  patent  until  the  controversy  is 
ended;  provided,  that  if  the  protestant  shall  not  within  thirty  days  after 
filing  his  protest  institute  suit  in  the  court  having  jurisdiction  thereof  in 
the  county  where  the  claims  are  located,  his  protest  shall  constitute  no  fur- 
ther barrier  to  the  issuance  of  patent.  A  certified  copy  of  the  petition  or 
a  certificate  of  the  clerk  of  the  court  where  suit  is  pending  shall  be  sufficient 
evidence  to  the  commissioner  of  the  pendency  of  the  suit,  and  of  the  date 
of  filing  said  suit.  When  the  land  in  controversy  lies  partly  in  two  counties 
suit  may  be  brought  in  either.  More  than  one  claim  shall  not  be  embraced 
in  the  same  patent  or  application.  The  suits  here  provided  for  shall  be  en- 
titled to  precedence  of  trial  on  the  docket.  [Ib.] 

Forfeiture  of  claims. 

Art.  3498Z.  All  claims  upon  which  patent  has  not  been  applied  for  within 
five  years  next  after  the  application  for  survey,  or  which  have  not  been  sur- 
veyed and  the  field-notes  returned  to  the  general  land  office  within  the  time 
prescribed  therefor  as  hereinbefore  provided,  or  upon  which  the  assessment 
work  has  not  been  done,  an  affidavit  therefor  filed  as  provided  by  this  article, 
shall  be  and  are  declared  forfeited  without  judicial  action  of  any  kind,  and 
subject  to  location  as  originally,  but  not  by  any  one  interested  in  the  claim 
at  the  time  of  forfeiture,  and  any  location  for  or  on  behalf  of  any  such  party 
shall  be  wholly  void.  Whenever  any  such  claim  shall  be  re-located,  the  lo- 
cators and  each  of  them  shall  make  affidavit  that  the  location  is  made  with- 
out any  contract  or  agreement  of  any  kind  that  any  of  the  parties  owning  an 
interest  in  the  location  before  the  re-location  has  or  is  to  have  any  interest  in 
the  same.  In  all  other  cases  where  affidavit  is  required  by  this  title  it  may 
be  made  by  one  or  more  of  the  parties  cognizant  of  the  facts.  [Ib.] 

Re-location  of  forfeited  claim. 

Art.  3498m.  No  claim  which  has  been  forfeited  for  any  cause  shall  be 
subject  to  re-location  for  a  period  of  thirty  days  next  thereafter,  and  the 
party  owning  the  same  may  apply  to  the  land  commissioner  within  that  time 
for  relief,  and  if  it  appear  to  him  from  the  proof  submitted  that  the  for- 
feiture was  not  occasioned  by  the  negligence  of  the  owner,  but  by  circum- 
stances which  he  could  not  reasonably  control,  the  commissioner  may  with- 
in that  time,  in  his  discretion,  grant  relief  against  the  forfeiture,  and  if  he 
grant  such  relief  he  shall  at  once  forward  his  order  to  that  effect  to  the  sur- 
veyor, who  shall  file  the  same  for  record  in  his  ofllce.  [Ib.] 
COST.MIN.L,.— 43 


674  APPENDIX    G. 

Applicant  to  make  oath. 

Art.  3498n.  Whenever  any  application  shall  be  made  to  buy  or  obtain 
title  to  any  of  the  lands  embraced  in  article  3498a,  except  where  the  applica- 
tion is  made  under  this  title,  the  applicant  shall  make  oath  that  there  is  not. 
to  the  best  of  his  knowledge  and  belief,  any  of  the  minerals  embraced  in  this 
title  thereon,  and  when  the  commissioner  has  any  doubt  in  relation  to  the 
matter  he  shall  forbear  action  until  he  is  satisfied.  Any  such  sale  or  dis- 
position of  said  lands  shall  be  undersood  to  be,  with  the  reservation  of  the 
minerals  thereon,  subject  to  location  as  herein  provided.  [Ib.] 

Placer  claims  subject  to  location. 

Art.  3498o.  Claims  usually  called  placers,  including  all  forms  of  metal- 
lic deposits,  excepting  veins  of  quartz  or  rock  in  place,  shall  be  subject  to 
entry  and  patent  under  like  circumstances  and  conditions  and  upon  similar 
proceedings  as  are  provided  for  vein  or  lode  claims.  All  placer  claims 
located  shall  conform  as  near  as  practicable  with  existing  surveys  and  their 
subdivisions,  and  no  such  location  shall  include  more  than  forty  acres  for 
each  individual  claimant  and  shall  not  exceed  three  hundred  and  twenty  acres 
for  any  association  of  persons.  The  price  which  shall  be  paid  for  such  placer 
shall  not  be  less  than  ten  dollars  per  acre,  together  with  all  costs  of  pro- 
ceedings, as  before  provided.  [Ib.] 

Application  may  embrace  non-adjacent   non-mineral  land. 

Art.  3498p.  Where  non-mineral  land  not  contiguous  to  the  vein  or  lode 
is  used  by  the  prospector  of  such  vein  or  lode  for  mining  or  milling  purposes, 
such  non-adjacent  surface  ground  may  be  embraced  and  included  in  an  ap- 
plication for  a  patent  for  such  vein  or  lode,  and  the  same  may  be  patented 
therewith,  subject  to  the  same  preliminary  requirements  as  to  survey  and 
notice  as  are  applicable  to  veins  or  lodes ;  but  no  location  of  such  non-ad- 
jacent lands  shall  exceed  ten  acres,  and  payment  for  the  same  must  be  made 
at  the  same  rate  as  fixed  by  this  title  for  the  superficies  of  the  lode.  The 
owner  of  a  quartz  mill  or  reduction  works,  not  owning  a  mine  in  connec- 
tion therewith,  may  also  receive  a  patent  for  a  mill  site,  as  provided  in  this 
section.  [Ib.] 

Purposes  for  which  timber  may  be  felled. 

Art.  3498q.  Any  owner  or  worker  of  mining  claim  under  this  title  is  au- 
thorized to  fell  and  remove  for  building  and  mining  purposes  any  timber  or 
tree  growing  or  being  upon  unoccupied  lands  as  described  in  article  3498a, 
said  lands  being  mineral  and  subject  to  entry  only  as  mineral  lands,  under 
such  rules  and  regulations  as  may  be  prescribed  for  the  protection  of  timber 
and  undergrowth  upon  such  lands  and  for  other  purposes.  [Ib.] 

Vested   rights   not    affected. 

Art.  3498r.  Nothing  in  this  title  shall  ever  be  so  construed  as  to  either 
destroy,  invalidate  or  impair  any  valid  claim,  right  or  interest  existing  in, 
to  or  concerning  any  lands  whatever  at  the  passage  of  this  title,  of  any  pre- 
ernptor,  purchaser,  claimant,  actual  settler,  locator,  or  other  person  whatso- 
ever. [Ib.] 

Proceeds  appropriated. 

Art.  3498s.  The  net  proceeds  of  all  sales  of  mining  lands  under  the  pro- 
visions of  this  title  shall  inure  to  the  benefit  of  the  State  and  the  respective 
funds  for  which  the  lands  mentioned  in  article  3498a  are  now  set  apart  un- 
dci  the  constitution  and  laws  of  the  state,  and  it  shall  be  the  duty  of  the 


TEXAS   MINING   LAWS.  675 

comptroller,  state  treasurer  and  commissioner  of  the  general  land  office  to 
see  to  it  and  have  said  proceeds  so  paid  rightly  placed  to  the  credit  of  the 
particular  and  proper  fund.  [Ib.] 

Surveyors  to  administer  oaths — Repealing  clause. 

Art.  3498t.  For  the  purpose  of  effectually  carrying  out  the  provisions  of 
this  title  all  county  or  district  surveyors  are  hereby  especially  authorized  and 
empowered  to  administer  oaths,  take  affidavits  and  make  certificates  thereof; 
provided,  further,  that  all  laws  and  parts  of  laws  in  conflict  with  this  title, 
or  any  part  thereof,  are  hereby  especially  repealed.  [Ib.] 


APPENDIX  H. 


ILLUSTRATIVE  FORMS  IN  PATENT  PROCEEDINGS  FOR 

LODE  CLAIMS. 


(These  forms  are  taken  by  permission  from  the  thirteenth  edition  of  Mor- 
rison's Mining  Rights.) 

NOTICE  OF  APPLICATION  FOR  PATENT. 
Survey  No.  11,310. 

U.  S.  Land  Office,  Pueblo,  December  15,  1907. 

Notice  Is  hereby  given  that  in  pursuance  of  the  act  of  Congress  approved 
May  10,  1872,  C.  A.  Wolcott,  whose  post  office  is  Boulder,  Colorado,  has  made 
application  for  a  patent  for  1,500  linear  feet  on  the  Bear  lode,  bearing  gold 
and  silver,  the  same  being  365  feet  southwesterly  and  1,135  feet  northeasterly 
from  discovery  shaft  thereon,  with  surface  mining  ground  300  feet  in  width, 
situate  in  Cripple  Creek  mining  district,  Teller  county,  state  of  Colorado,  and 
described  by  the  official  plat  and  by  the  field  notes  on  file  in  the  office  of  the 
register  of  Pueblo  land  district,  Colorado,  as  follows,  viz.: 

Beginning  at  corner  No.  1,  whence  the  W.  %  cor.  Sec.  22,  T.  15  S.,  R.  69  W. 
of  the  6th  principal  meridian,  bears  S.  79°  34'  W.  1378.2  feet. 

Cor.  No.  1,  Gotteiiburg  lode  (unsurveyed),  Neals  Mattson,  claimant,  bears 
S.  40°  29'  W.  187.67  feet. 

Thence  S.  24°  45'  W.  1,500  ft.  to  cor.  No.  2,  whence  cor.  No.  1,  sur.  No.  2,- 
560,  Carnarvon  lode,  bears  N.  88°  E.  61.6  ft  Thence  N.  65°  15'  W.  300  ft 
to  cor.  No.  3.  Thence  N.  24°  45'  E.  1,500  ft.  to  cor.  No.  4.  Thence  S.  65°  15'  E. 
300  ft  to  cor.  No.  1,  the  place  of  beginning — containing  8.011  acres  (exclusive 
of  survey  No.  2,560  and  the  Gottenburg  lode),  and  forming  a  portion  of  the 
west  y2  section  22  in  township  15  S.,  range  69  W.  of  the  sixth  principal  me- 
ridian. The  names  of  the  adjoining  and  conflicting  claims  as  shown  by  the 
plat  of  survey  are  the  Gottenburg  lode  on  the  northwest  and  the  Carnarvon 
lode  on  the  south.  C.  A.  WOLCOTT. 

Witness: 

JOHN  C.  CLAEK. 
B.  F.  PINSON. 

PROOF  OF  POSTING  NOTICE  AND  DIAGRAM  ON  THE  CLAIM. 

State  of  Colorado,  Teller  County — ss.: 

John  C.  Clark  and  B.  F.  Pinson,  each  for  himself,  and  not  one  for  the  other, 
being  first  duly  sworn  according  to  law,  deposes  and  says  that  he  is  a  citizen 
of  the  United  States,  over  the  age  of  twenty-one  years,  and  was  present  on 
the  15th  day  of  December,  A.  D.  1907,  when  a  plat  representing  the  claim  of 
C.  A.  Wolcott,  and  certified  as  correct  by  the  United  States  surveyor  general 

(676) 


FORMS   IN   PATENT   PROCEEDINGS.  677 

of  Colorado,  and  designated  by  him  as  lot  No.  11,310,  together  with  a  notion 
of  the  intention  of  said  C.  A.  Wolcott  to  apply  for  a  patent  for  the  mininir 
daim  and  premises  so  platted,  was  posted  in  a  conspicuous  place  upon  said 
Biining  claim,  to  wit,  upon  the  outside  of  the  door  .of  the  shaft  house  at  the 
discovery,  where  the  same  could  be  easily  seen  and  examined.  A  copy  of  the 
notice  so  posted  upon  said  claim  is  herewith  attached  and  made  a  part  of  this 
affdavit.  JOHN  C.  CLARK. 

B.   F.   PINSON. 

Subscribed  and  sworn  to  before  me  this  15th  day  of  December,  A.  D.  11)07. 
and  I  hereby  certify  that  I  consider  the  above  deponents  credible  and  reliable 
witnesses,  and  that  the  foregoing  affidavit  and  notice  were  read  by  each  of 
them  before  their  signatures  were  affixed  thereto,  and  the  oath  made  by  them. 

[Seal.]  HENRY  MOODY,  Notary  Public. 

APPLICATION  FOR  PATENT. 
State  of  Colorado,  Teller  County — ss.: 

Application  for  Patent  for  the  Bear  Lode  Mining  Claim.  To  the  Register 
and  Receiver  of  the  U.  S.  Land  Office  at  Pueblo,  Colorado: 

O.  A.  Wolcott,  whose  post  office  address  is  Boulder,  Colorado,  being  duly 
sworn  according  to  law,  deposes  and  says:  That  in  virtue  of  a  compliance 
with  the  mining  rules,  regulations,  and  customs  by  himself  (and  his  grantors) 
he,  the  applicant  for  patent  herein,  has  become  the  owner  of  and  is  in  the  ac- 
tual, quiet,  and  undisturbed  possession  of  1,500  linear  feet  of  the  Bear  vein, 
lode,  or  deposit,  bearing  gold  and  silver,  together  with  surface  ground  300  feet 
In  width,  for  the  convenient  working  thereof  as  allowed  by  local  rules  and 
customs  of  miners;  said  mineral  claim,  vein,  lode,  or  deposit  and  surface 
ground  being  situate  in  Cripple  Creek  mining  district,  county  of  Teller,  and 
state  of  Colorado,  as  more  particularly  set  forth  and  described  in  the  official 
field  notes  of  survey  thereof,  hereto  attached,  dated  December  11,  1907,  and 
in  the  official  plat  of  said  survey,  now  posted  conspicuously  upon  said  mining 
claim  or  premises,  a  copy  of  which  is  filed  herewith.  Deponent  further  states 
that  the  facts  relative  to  the  right  of  possession  of  himself  to  said  mining 
claim,  vein,  lode,  or  deposit  and  surface  ground  so  surveyed  and  platted  are 
substantially  as  follows,  to  wit:  The  Bear  lode  was  discovered  on  or  about 
the  4th  day  of  July,  A.  D.  1897,  by  James  A.  McFadden,  who  afterwards,  and 
before  the  28th  day  of  July,  A.  D.  1897,  completed  a  location  of  the  same  as 
a  mining  claim  of  the  length  and  width  aforesaid,  having  substantially  located 
the  same,  and  otherwise  complied  with  all  local  rules  and  regulations,  the  laws 
of  the  state  of  Colorado  and  of  the  United  States  relating  to  mining  claims. 

The  said  discoverer  and  locator  conveyed  all  his  interest  in  the  claim  to 
Ghas.  O.  Baxter  and  Frank  M.  Taylor,  who  by  divers  intermediate  conveyances 
transferred  the  same  to  applicant,  who  thereupon  took  possession  and  is  the 
sole  present  owner,  all  of  which  will  more  fully  appear  by  reference  to  the 
copy  of  the  original  record  of  location  and  the  abstract  of  title  herewith  filed; 
the  value  of  the  labor  done  and  improvements  made  upon  said  Bear  Lode  Min- 
ing Claim  by  the  applicant  (and  his  grantors)  being  equal  to  the  sum  of  five 
hundred  dollars.  Said  improvements  consist  of  discovery  shaft,  an  incline, 
shaft  house,  a  drift,  and  two-thirds  interest  in  tunnel  (but  expressly  excepting 
and  excluding  from  this  application  all  that  portion  of  the  ground  embraced 
to  mining  claim  or  survey  designated  as  lot  No.  2,500  and  the  claim  of  Xonls 
Mattson  on  the  Gottenburg  lode).  In  consideration  of  which  facts  and  in  con- 
formity with  the  provisions  of  chapter  VI,  title  32,  of  the  Revised  Statutes  of 


678  APPENDIX   H. 

the  United  States,  application  is  hereby  made  for  and  in  behalf  of  said  C.  A. 
Woleott  for  a  patent  from  the  United  States  for  the  said  Bear  Lode  Mining 
Claim,  vein,  lode,  or  deposit  and  the  surface  ground  so  officially  surveyed  and 
platted.  C.  A.  WOLCOTT. 

Subscribed  and  sworn  to  before  me  this  16th  day  of  December,  A.  D.  1907, 
and  I  hereby  certify  that  I  consider  the  above  deponent  a  credible  and  reliable 
person,  and  the  foregoing  affidavit,  to  which  was  attached  the  field  notes  of 
survey  of  the  Bear  Lode  Mining  Claim,  was  read  and  examined  by  him  be- 
fore his  signature  was  affixed  thereto  and  the  oath  made  by  him. 

[Seal.]  HENRY  MOODY,  Notary  Public. 

PROOF   OF   CITIZENSHIP   OF   NATIVE-BORN    CITIZEN. 
State  of  Colorado,  County  of  Teller — ss.: 

C.  A.  Woleott,  being  first  duly  sworn  according  to  law,  deposes  and  says 
that  he  is  the  applicant  for  patent  for  the  Bear  Lode  Mining  Claim,  situate 
in  Cripple  Creek  mining  district,  county  of  Teller,  state  of  Colorado ;  that  he 

is  a  native  born  citizen  of  the  United  States,  born  in  the  county  of  , 

state  of ,  in  the  year ,  and  is  now  a  resident  of  Boulder,  state  of 

Colorado.  C.  A.  WOLCOTT. 

Subscribed  and  sworn  to  before  me  this  15th  day  of  December,  A.  D.  1907. 
[Seal.]  HENRY  MOODY,  Notary  Public. 

PUBLISHER'S  CONTRACT. 

I,  the  undersigned,  publisher  and  proprietor  of  the  Cripple  Creek  Star,  a 
weekly  newspaper  published  in  Cripple  Creek,  Teller  county,  state  of  Colorado, 
hereby  agree  to  publish  a  notice  dated  U.  S.  Land  Office,  Pueblo,  Colo.,  Decem- 
ber 15,  1907,  required  by  act  of  Congress  approved  May  10,  1872,  of  the  inten- 
tion of  C.  A.  Woleott  to  apply  for  a  patent  for  his  claim  on  the  Bear  lode, 
situate  Cripple  Creek  mining  district,  county  of  Teller,  state  aforesaid,  and 
to  hold  the  said  C.  A.  Woleott  alone  responsible  for  the  amount  of  our  bill  for 
publishing  the  same. 

And  it  is  hereby  expressly  stipulated  and  agreed  that  no  claim  shall  be  made 
against  the  government  of  the  United  States,  or  its  officers  or  agents,  for  such 
publication.  „ 

Witness  my  hand  this  16th  day  of  December,  A.  D.  1907. 

P.  H.  KNOWLTON,  Publisher. 

PROOF  OF  PUBLICATION. 

I,  P.  H.  Knowlton,  do  certify  that  I   am 
publisher  of  the  Cripple  Creek  Star,  a  week- 

[Copy  of  ly  newspaper  published  in  Cripple  Creek,  in 

publication  notice  the  county  of  Teller,  and  state  of  Colorado, 

cut  from  and  that  the  annexed  notice  was  published 

paper  and  pasted  in  said  paper  once  each  and  every  week  for 

here.]  nine  consecutive  weeks ;   the  first  publication 

being  on  the  18th  day  of  December,  A.  D. 

1907,  and  the  last  publication  being  on  the 

12th  day  of  February,  A.  D.  1908. 

[The    publisher's    receipted  P.  H.  KNOWLTON. 

bill  is  commonly  attached  to  Subscribed  and  sworn  to  before  me  this 
this  blank.]  20th  day  of  February,  A.  D.  1908. 

[Seal.]         HENRY  MOODY,  Notary  Public. 


FORMS   IN   PATENT   PROCEEDINGS.  G?D 


PROOF  THAT  PLAT  AND  NOTICE  REMAINED  POSTED  ON  CLAIM  DUR- 
ING TIME  OF  PUBLICATION. 

State  of  Colorado,  Comity  of  Teller — ss.: 

C.  A.  Wolcott,  being  first  duly  sworn  according  to  law,  deposes  and  says  that 
he  is  the  claimant  of  the  Bear  Lode  Mining  Claim,  Cripple  Creek  mining  dis- 
trict, Teller  county,  state  of  Colorado,  the  official  plat  of  which  premises,  to- 
gether with  the  notice  of  his  intention  to  apply  for  a  patent  therefor,  was  post- 
ed thereon,  on  the  loth  day  of  December,  A.  D.  1907,  as  fully  set  forth  and  de- 
scribed in  the  affidavit  of  John  C.  Clark  and  B.  F.  Pinson,  dated  the  15th  day 
of  December,  1907,  which  affidavit  was  duly  filed  in  the  office  of  the  register,  at 
Pueblo,  in  this  state;  and  that  the  plat  and  notice  so  mentioned  and  describ- 
ed remained  continuously  and  conspicuously  posted  upon  said  mining  claim 
from  the  15th  day  of  December,  A.  D.  1907,  until  and  including  the  19th  day 
of  February,  A.  D.  1908,  including  the  sixty  days'  period  during  which  notice 
of  said  application  for  patent  was  published  in  the  newspaper. 

C.  A.  WOLCOTT. 

Subscribed  and  sworn  to  before  me  this  20th  day  of  February,  A.  D.  1908, 
and  I  hereby  certify  that  the  foregoing  affidavit  was  read  to  the  said  C.  A. 
Wolcott  previous  to  his  name  being  subscribed  thereto. 

[Seal.]  D.  C.  CEAWFORD,  Notary  Public. 

PROOF  OF  SUMS  PAID. 

State  of  Colorado,  County  of  Teller — ss.: 

C.  A.  Wolcott,  having  been  first  duly  sworn  according  to  law,  deposes  and 
says  that  he  is  a  citizen  of  the  United  States,  over  the  age  of  twenty-one  years ; 
that  he  is  the  applicant  for  patent  to  1,500  feet  upon  the  Bear  Lode,  in  Cripple 
Creek  mining  district,  Teller  county,  Colorado;  that  in  the  prosecution  of 
such  application  he  has  paid  the  following  sums  of  money,  viz.: 

For  office  work  in  the  surveyor  general's  office $  30 

To  E.  E.  Chase,  mineral  surveyor,  for  surveying  and  platting 50 

To  register  and  receiver,  for  filing  application  in  land  office 10 

To  the  Cripple  Creek.  Star,  for  publishing  notice  of  application 20 

To  the  receiver  of  the  local  land  office,  for  land .'. . .  45 


S155 

C.  A.  WOLCOTT. 

Subscribed  and  sworn  to  before  me  this  20th  day  of  February,  A.  D.  1908. 
[Seal.]  D.  C.  CRAWFORD,  Notary  Public. 

APPLICATION  TO  PURCHASE. 

To  the  Register  and  Receiver,  United  States  Land  Office,  at  Pueblo,  Colorado: 
The  undersigned,  claimant  under  the  provisions  of  the  Revised  Statutes  of 
the  United  States,  chapter  VI,  title  32,  and  legislation  supplemental  thereto, 
hereby  applies  to  purchase  that  mining  claim  known  as  the  Bear  Lode,  located 
in  the  west  half  of  section  22,  township  No.  15  S.,  range  No.  69  west  of  the  sixth 
principal  meridian,  designated  as  lot  No.  11,310,  said  lot  No.  11,310  extending 
1.500  feet  in  length  along  said  Bear  vein  or  lode,  but  expressly  excepting  and 
excluding  from  this  application  all  that  portion  of  the  ground  embraced  in 


680  APPENDIX   H. 

mining  claim  or  survey  designated  as  lot  No.  2,560,  the  Carnarvon  lode,  and  the 
claim  of  Neals  Mattson,  on  the  Gottenburg  lode,  and  also  all  that  portion  of 
any  vein  or  lode,  the  top  or  apex  of  which  lies  inside  of  said  excluded  ground, 
said  lode  mining  claim  embracing  8.011  acres,  in  the  Cripple  Creek  mining  dis- 
trict, in  the  county  of  Teller,  and  state  of  Colorado,  as  shown  by  the  survey 
thereof,  and  hereby  agrees  to  pay  therefor  forty-five  dollars,  being  the  legal 
price  thereof.  C.  A.  WOLCOTT. 

Dated  Pueblo,  February  20,  1908. 

REGISTER'S  CERTIFICATE  OF   POSTING  NOTICE  FOR   SIXTY  DAYS. 

(Attached  to  Bulletin  Copy  of  the  Notice  of  Application  for  United  States 

Patent.) 

United  States  Land  Office  at  Pueblo,  Colorado,  February  21,  1908. 
I  hereby  certify  that  the  official  plat  of  the  Bear  lode,  designated  by  the  sur- 
veyor general  as  lot  No.  11,310,  was  filed  in  this  office  on  the  16th  day  of  De- 
cember, A.  D.  1907,  and  that  a  notice,  of  which  the  attached  is  a  copy,  of  the 
intention  of  C.  A.  Wolcott  to  apply  for  a  patent  for  the  mining  claim  or  prem- 
ises embraced  by  said  plat,  and  described  in  the  field  notes  of  survey  thereof 
filed  in  said  application,  was  posted  conspicuously  in  this  office  on  the  16th 
day  of  December,  1907,  and  remained  so  posted  until  the  19th  day  of  Febru- 
ary, 1908,  being  the  full  period  of  sixty  consecutive  days,  during  the  period 
of  publication  as  required  by  law,  and  that  said  plat  remained  in  this  office 
during  that  time  subject  to  examination,  and  that  no  adverse  claim  thereto 
has  been  filed.  S.  A.  ABBEY,  Register. 

REGISTER'S  FINAL  CERTIFICATE  OF  ENTRY. 

Mineral  Entry  No.  2,000.    Lot  No.  11,310. 
United  States  Land  Office  at  Pueblo,  Colorado,  February  21,  1908. 

It  Is  hereby  certified  that  in  pursuance  of  the  provisions  of  the  Revised  Stat- 
utes of  the  United  States,  chapter  VI,  title  32,  and  legislation  supplemental 
thereto,  C.  A.  Wolcott,  whose  post  office  address  is  Boulder,  Colorado,  on  this 
day  purchased  that  mining  claim  known  as  the  Bear  Lode,  in  the  west  %  of 
section  22,  in  township  No.  15  S.,  range  No.  69  W.  of  the  sixth  principal  me- 
ridian, designated  as  lot  No.  11,310,  said  lot  No.  11,310  extending  1,500  feet 
in  length  along  said  Bear  vein  or  lode,  expressly  excepting  and  excluding  from 
said  purchase  all  that  portion  of  the  ground  embraced  in  mining  claim  or  sur- 
vey designated  as  lot  No.  2,560,  Carnarvon  lode,  also  the  claim  of  Neals  Matt- 
son,  on  the  Gottenburg  lode,  and  also  all  that  portion  of  any  vein  or  lode  the 
top  or  apex  of  which  lies  inside  of  said  excluded  ground ;  said  lode  mining 
claim,  as  entered,  embracing  8.011  acres  in  the  Cripple  Creek  mining  district, 
in  the  county  of  Teller  and  state  of  Colorado,  as  shown  by  the  plat  and  field 
notes  of  survey  thereof,  for  which  the  said  party  first  above  named  this  day 
made  payment  to  the  receiver  in  full,  amounting  to  the  sum  of  forty-five  dol- 
lars. 

Now,  therefore,  be  it  known  that  upon  the  presentation  of  this  certificate 
to  the  Commissioner  of  the  General  Land  Office,  together  with  the  plat  and 
field  notes  of  survey  of  said  claim  and  the  proofs  required  by  law,  a  patent 
shall  issue  thereupon  to  the  said  C.  A.  Wolcott,  if  all  be  found  regular. 

S.  A.  ABBEY,  Register. 


FORMS   IN   PATENT   PROCEEDINGS.  CS1 

ADVERSE  CLAIM. 
United  States  Land  Office  at  Pueblo,  Colorado. 

In  the  Matter  of  the  Application  of  C.  A.  Wolcott  for  a  United  States  Pat- 
ent to  the  Bear  Lode  Mining  Claim,  Situate  in  Cripple  Creek  Mining  District, 
County  of  Teller,  State  of  Colorado. 

To  the  Register  and  Receiver  of  the  United  States  Land  Office  and  to  the 

Above-Named  Claimant: 

Whereas,  C.  A.  Wolcott  did,  on  the  16th  day  of  December,  A.  D.  1907,  file 
in  the  district  land  office  of  the  United  States,  at  Pueblo,  Colorado,  a  certain 
plat  of  a  survey  of  a  certain  lode,  together  with  his  application  for  a  United 
States  patent  for  said  lode,  naming  and  calling  the  said  lode  in  said  plat  and 
application  the  Bear  Lode,  situate  in  Cripple  Creek  mining  district,  county  of 
Teller,  state  of  Colorado,  said  survey  and  plat  being  designated  as  mineral 
survey  No.  11,310,  and  consisting  of  1,500  linear  feet,  together  with  surface 
ground  300  feet  in  width ;  and  the  said  C.  A.  Wolcott  did,  at  the  same  time 
and  place,  give  notice  that  he  would  apply  for  a  United  States  patent  1'or  the 
above-described  lode  and  premises  in  substance  as  follows: 

[Here  attach  copy  of  newspaper  publication.] 

And  whereas,  the  first  publication  of  said  notice  of  said  application  appear- 
ed in  the  Cripple  Creek  Star,  a  weekly  newspaper  published  at  Cripple  Creek, 
in  said  county  and  state,  on  the  18th  day  of  December,  A.  D.  1907: 

Now,  therefore,  I,  Edward  F.  Bishop,  a  citizen  of  the  United  States  over  the 
age  of  twenty-one  years,  residing  in  and  my  post-office  address  being  Denver, 
in  the  county  of  Denver,  in  said  state,  do,  on  this  3d  day  of  February,  A.  D. 
1908.  enter  this  my  protest  and  adverse  claim  against  the  issuing  of  a  patent 
to  the  said  O.  A.  Wolcott  for  his  pretended  claim  upon  the  so-called  Bear  Lode, 
as  set  forth  in  his  said  plat  and  field  notes  as  aforesaid,  for  the  following  rea- 
sons, to  wit: 

1.  The  surface  ground  and  veins  or  lodes  contained  therein  as  set  forth  and 
described  in  the  plat  an  '  field  notes  of  the  said  C.  A.  Wolcott,  or  a  great  por- 
tion thereof,  are  not  the  property  of  the  said  applicant,  neither  is  he  entitled 
to  hold  the  same  under  or  by  virtue  of  the  local  laws,  rules,  and  customs  of 
miners  in  said  mining  district,  the  laws  of  the  state  of  Colorado,  or  the  stat- 
utes of  the  United  States  relating  to  mining  claims. 

2.  Because  a  great  portion  of  the  premises  described  in  said  plat  and  notice 
of  said  applicant,  and  claimed  by  him  as  the  so-called  Bear  Lode,  is  claimed 
adversely,  and  is  owned  by  this  protestant,  and  is  in  fact  a  portion  of  the 
premises  claimed  and  owned  by  this  protestant  as  the  Elephant  Lode,  as  will 
appear  by  reference  to  an  abstract  of  title  herewith  filed,  made  a  part  of  this 
protest,  and  marked  Exhibit  A. 

3.  Because  this  protestant  (and  his  grantors)  have  held,  occupied,  and  pos- 
sessed a  great  portion  of  the  premises  set  forth  and  described  by  the  said  C. 
A.  Wolcott  in  his  plat  and  notice  of  the  so-called  Bear  Lode,  long  prior  to  the 
pretended  discovery  and  location  of  the  so-called  Bear  Lode ;   such  occupation 
and  possession  of  this  protestant  (and  his  grantors)  having  been  under  and  by 
virtue  of  a  full  compliance  with  the  local  laws,  rules,  and  customs  of  said  min- 
ing district,  and  the  laws  of  said  state,  and  of  the  United  States,  pertaining 
to  mineral  lands. 


682  APPENDIX   H. 

4.  Because  this  protestant  (and  his  grantors)  have  held,  occupied,  and  pos- 
sessed all  that  portion  of  the  so-called  Bear  Juode,  as  represented  on  the  plat 
of  u  survey  made  by  Thomas  L.  Darby,  United  States  mineral  surveyor,  and 
colored  red,  said  plat  of  said  survey  being  herewith  filed,  marked  Exhibit  B, 
and  made  a  part  of  this  protest,  and  have  held,  occupied,  and  possessed  the 
same  long  prior  to  the  pretended  discovery  and  location  of  the  so-called  Bear 
Lode.    And  this  protestant  is  the  original  discoverer  and  locator  of  said  Ele- 
phant Lode  (or  is  a  bona  fide  purchaser  for  a  valuable  consideration,  from  or 
through  the  original  discoverer  and  locator  of  said  Elephant  Lode,  by  convey- 
ances) as  shown  on  said  abstract.     (See  Rule  81.) 

5.  Because  a  valid  discovery,  location,  and  record  of  said  Elephant  Lode 
was  made  by  this  protestant  (or  his  grantors),  in  strict  compliance  with  said 
local  laws,  rules,  and  customs,  and  the  laws  of  the  state  of  Colorado  and  of 
the  United  States,  and  while  the  same  was  vacant  mineral  land  of  the  United 
States  open  to  occupation,  long  prior  to  any  pretended  discovery  or  location 
thereof  by  said  C.  A.  Wolcott  (or  his  grantors),  and  said  Elephant  Lode  hath 
been  occupied  and  possessed  as  aforesaid,  ever  since  its  discovery  as  afore- 
said, by  this  protestant  (and  his  grantors)  under  and  by  virtue  of  such  discov- 
ery, location,  and  record. 

6.  Because  the  discovery  shaft  of  the  so-called  Bear  Lode  was  not  of  the 
legal  depth  of  ten  feet  from  the  lowest  part  of  the  rim  at  the  surface,  as  re- 
quired by  law  at  the  date  of  the  pretended  record  of  the  same,  and  has  never 
been  since  sunk  to  that  depth. 

Wherefore  this  protestant  enters  this  his  protest  and  adverse  claim  against 
the  issuance  of  a  patent  to  the  said  C.  A.  Wolcott  for  his  claim  upon  the  so- 
called  Bear  Lode.  ED.  F.  BISHOP. 

State  of  Colorado,  County  of  Teller— ss.: 

On  this  3d  day  of  February,  A.  D.  1908,  before  me,  the  subscriber,  a  notary 
public  in  and  for  said  county,  personally  appeared  the  above-named  Edward 
F.  Bishop,  who,  being  first  duly  sworn,  saith  that  he  is  the  adverse  claimant 
named  in  the  foregoing  protest  and  adverse  claim  above  subscribed  by  him, 
that  he  has  read  the  same  and  knows  the  contents  thereof,  that  the  same  is 
true  in  substance  and  in  fact  and  that  the  said  adverse  claim  is  made  in  good 
faith  and  to  protect  his  better  and  prior  title.  ED.  F.  BISHOP. 

Sworn  and  subscribed  before  me  this  3d  day  of  February,  A.  D.  1908. 

[Seal.]  E.  H.  GEUBEB,  Notary  Public. 


APPENDIX  I. 

SAMPLE  MINING  LAW  EXAMINATION  QUESTIONS. 


MINING  LAW. 

(February,  1906.) 

I. 

X.  comes  to  you  aixl  says  that  he  has  found  a  small  triangular  piece  of  un- 
located  ground  between  two  well-known  mining  claims,  which  he  feels  sure  is 
on  their  pay  vein.  He  engages  you  to  help  him  make  a  valid  location,  which 
shall  give  him  all  the  rights  which  any  one  can  get  in  that  piece.  State  ex- 
actly what  you  have  him  do  and  why?  Draw  a  diagram  to  illustrate.  Also 
state  when  his  annual  labor  must  begm. 

II. 

T.  comes  to  you  with  the  following  difficulties: 

(a)  Y.  has  laid  out  a  claim  on  the  ground  so  that  it  is  200  feet  longer  and  100 
feet  wider  than  the  law  allows.     His  location  notice,  however,  calls  for  only 
the  legal  length  and  width.    Z.,  knowing  of  Y.'s  mistake,  has  located  a  claim 
clear  across  Y.'s  in  such  a  way  as  to  include  Y.'s  discovery  shaft,  which  is  in 
the  middle  of  Y.'s  claim.    What,  if  anything,  can  Y.  do? 

(b)  Y.  let  the  work  for  1905  on  another  claim  go  undone  until  December  30th. 
That  day  he  took  some  tools  on  the  claim  and  picked  down  some  ore  in  a  stop-, 
intending  to  keep  on  working  the  claim.    December  31st,  being  Sunday,  he  did 
not  work ;  but  he  left  his  tools  on  the  claim.    At  1:00  a.  m.  Monday,  January 
1,  1906,  Z.  put  up  a  notice  of  location,  and  staked  off  the  claim  anew.    At  7:00 
a.  m.  the  same  day  Y.  went  on  with  his  work.    Z.  is  now  doing  the  discovery 
work  in  Y.'s  old  shaft    What,  if  anything,  can  Y.  do? 

III. 
G.  wants  to  know: 

(a)  What  he  has  to  do  to  acquire  a  tunnel  site,  and  what  rights,  if  any,  he 
will  get  against  (1)  a  prior  patented  claim;  (2)  a  prior  unpatented  claim;  (3) 
a  subsequent  location,  which  goes  to  patent  before  the  tunnel  gets  beneath  it, 
and  before  the  tunnel  cuts  any  veins  apexing  in  it ;  also,  what,  if  anything,  he 
gets,  first  or  last,  that  he  can  patent? 

(b)  What  right,  if  any,  an  adjoining  lode  claimant  has  to  follow  the  dip  of 
his  vein  under  (1)  G.'s  prior  patented  farm ;  (2)  G.'s  prior  patented  placer ; 
(3)  G.'s  prior  patented  lode  claim? 

(683) 


084 


APPENDIX    I. 


IV. 

K.  wants  to  know  about  the  following  matters: 

(a)  L.  owned  the  John  Doe  claim,  which  wras  unpatented.     In  1905  L.  did 
not  work  on  the  Claim;  but  he  paid  a  watchman  $000  to  see  that  the  buildings 
on  it,  worth  $10,000,  and  the  workings,  were  not  molested.    The  watchman  was 
employed  January  1,  1905,  under  a  three-year  contract ;   L.  intending  to  wrork 
the  mine  again  in  1908,  but  not  before.    January  1,  1906,  K.  went  to  relocate 
the  John  Doe  claim  as  the  Richard  Roe,  and  put  up  a  location  notice,  and  start- 
ed to  put  up  stakes  and  do  discovery  work,  when  the  watchman  forced  him  to 
leave.    K.  wants  to  know  what  he  can  do,  and  whether,  if  K.'s  attempted  re- 
location is  valid,  L.  can  make  K.  pay  for  the  $10,000  worth  of  buildings. 

(b)  What  test  to  apply  to  determine  whether  ground  is  lode  or  placer,  where 

(1)  K.  locates  it  first  as  a  lode,  and  M.  subsequently  locates  it  as  a  placer; 

(2)  where  N.  locates  it  first  as  a  placer,  and  K.,  making  a  discovery  subsequent- 
ly outside  the  placer  lines,  projects  his  lode  location  over  part  of  the  placer, 
but  along  the  vein. 

V. 

E.  comes  to  you  for  advice  as  to  the  following: 

(a)  F.  is  applying  for  a  patent  to  a  mill  site,  and  the  land  is  mineral.     E. 
has  no  interest  in  the  land,  but  wants  to  know  if  he  can  defeat  F.'s  applica- 
tion, and,  if  so,  how? 

(b)  R.,  a  junior  locator,  is  seeking  to  patent  his  whole  claim,  which,  as  sur- 
veyed, overlaps  E.'s  prior  claim.  E.  wants  to  know  how  he  can  protect  him- 
self and  get  a  patent  for  (1)  the  conflict  area ;   and  (2)  the  rest  of  E.'s  claim. 


VI. 

S.  has  the  following  difficulties: 

(a)  T.,  who  owned  the  Poodle  Dog  unpatented  claim,  conveyed  to  S.  a  tri- 
angular piece  a — b — c,  shown  in  Diagram  No.  1. 

DIAGRAM  No.  1. 


Poorfk  Boo 


BlStoVfcriy 


X         fc 

The  deed  was  drawn  by  Eastern  lawyers,  and  was  an  ordinary  real  estate 
quitclaim  deed,  containing  no  reference  to  veins,  dips,  etc.  The  triangular  piece 
extended  part  way  over  the  discovery  vein  of  the  Poodle  Dog,  which  vein  dip- 
ped to  the  south.  The  deed  was  given  in  1904,  and  in  1905  T.  did  no  work  on 
the  Poodle  Dog;  but  S.  did  $100  worth  of  work  on  the  triangular  piece.  Jan- 
uary 1,  1906,  T.  relocated  the  Poodle  Dog,  and  now  claims  (1)  that  S.  has  no 
interest  in  the  triangular  piece;  (2)  that  in  any  event  S.  has  no  extralateral 
rights. 


SAMPLE   EXAMINATION   QUESTIONS. 


685 


(b)  S.  also  took  from  T.  a  mining  deed  to  piece  e — f — g — h,  which  Included 
part  of  the  apex  of  the  secondary  vein  shown  in  the  diagram.  The  north  part 
of  that  vein  in  S.'s  ground  dips  north,  the  west  part  west,  and  the  south  part 
south.  S.  wants  to  know:  (1)  What  extralateral  rights,  if  any,  he  acquired 
in  that  secondary  vein;  (2)  whether  the  relocation  by  T.  in  190G  destroyed 
S.'s  rights  in  this  second  piece. 

VII. 

(a)  A.  makes  a  lode  discovery,  and  puts  up  his  notice,  and  starts  to  do  dis- 
covery work.    B.  comes  there  the  next  day,  and  makes  a  discovery  on  adjoin- 
ing ground  on  a  separate  vein  crossing  A.'s  on  the  strike.    B.  then  lays  out  his 
claim,  crossing  A.'s.     B.  completes  his  location,  including  record,  before  A. 
completes  his.     A.,  however,  completes  his  location,  except  that  he  does  not 
record  his  certificate  of  location  for  a  year  after  the  time  fixed  by  statute. 

What  are  the  rights  of  the  parties? 

Suppose  the  senior  locator  were  to  abandon  his  location.  What,  if  anything, 
would  the  junior  locator  have  to  do  to  acquire  the  conflict  area? 

(b)  X.  locates  a  claim   on  the  ground,   doing  all  preliminary  work,   and 
records  his  location  notice,  but  then  finds  out  that  what  he  discovered  and 
worked  was  a  large  boulder  of  float.     Y.  comes  on  the  ground  to  make  a 
location,  thinking  he  can  discover  ore.     X.  tries  to  prevent  him,  but  Y.  in- 
timidates X.  and  enters.    Y.  finds  a  vein,  puts  up  a  notice,  and  makes  location. 
Before  Y.  completes  his  location,  X.  also  discovers  another  vein  within  the 
limits  of  his  original  location,  and  without  doing  any  more  locating  brings 
ejectment  against  Y.    Judgment  for  whom? 


VIII,  IX,  AND  X. 

In  the  case  of  each  claim  in  diagram  No.  2,  the  Mascot  being  located  under 
the  act  of  1866,  and  all  the  others  being  located  under  the  act  of  1872,  state 
why  there  are  or  are  not  extralateral  rights,  and,  if  there  are  any,  what 
they  are;  and  in  the  case  of  the  Tramp  claim,  state  what,  if  any,  cross  vein 
rights  there  are. 

DIAGRAM  No.  2. 


i^tin-    Mascot  Exlinsioiv NoV /     \Masco 


* 


Explanation:  Vein  a-6-6',  is  the  original  discovery  vein  on  all  but  the 
Tramp  and  the  Hoodoo  claims.  Vein  c-d  is  the  discovery  vein  of  the  Tramp 
claim,  x-y  is  the  broad  discovery  vein  of  the  Hoodoo,  but  it  is  partly  on  the 
Mascot  extensions  Nos.  2,  3,  and  4.  e-f  and  g-h  are  secondary  Terns.  6-6"  is  a 
broken  off  part  of  the  vein  a-6-6'.  All  the  veins  except  c-d  dip  to  the  south  or 
southwest,  and  vein  c-d  dips  to  the  east.  The  Mascot  claims  were  located  in 
the  order  indicated  by  their  names ;  then  the  Hoodoo,  then  the  Tramp. 


686 


APPENDIX   I. 


MINING  LAW. 
(February,  1907.) 

I. 
What  is  the  test  of  a  discovery  of 

(a)  A  prior  lode  claim  as  against  a  subsequent  attempted  placer  location  of 
the  same  ground? 

(b)  A  prior  placer  as  against  a  subsequent  attempted  lode  location? 

(c)  A  prior  mill  site  as  against  a  subsequent  attempted  lode  location? 

(d)  Oil  as  compared  with  precious  metals? 

In  (b)  if  a  lode  location  may  be  made,  what  surface  ground  may  the  lode 
location  occupy? 

II. 

In  diagram  No.  1  the  Poodle  Dog  was  located  by  X.  In  1900.  In  1902  X. 
conveyed  the  triangular  piece  a — b — c  to  Y.,  and  the  rectangular  piece  e — f — 
g — h  to  Z.  The  rectangular  piece  is  nowhere  nearer  the  discovery  vein  than 
500  feet.  The  questions  for  you  to  solve  are: 

(a)  Has  Y.  any  extralateral  rights? 

(b)  Has  Z.  any  extralateral  or  other  rights  on  the  secondary  vein? 

DIAGRAM  No.  1. 


Poorfk 


C 


uun 


III. 

A.  wants  to  know: 

(a)  If  he  can  now  relocate  the  Little  Dorritt  claim,  because  B.,  who  owned 
it,  has  not  paid  A.  for  doing  the  necessary  annual  labor  in  1906,  though  A. 
has  often  demanded  the  money? 

(b)  When  A.  must  do  the  annual  labor  on  the  Rob  Roy  claim,  located  by  A. 
on  January  2,  1907? 

(c)  Whether  A.  must  perform  annual  labor  on  the  Keystone  placer  located 
by  A.? 

(d)  Whether  anything  is  gained  by  filing  an  affidavit  of  annual  labor,  and, 
if  so,  whnfv 

(e)  Whether  a  state  law  requiring  $200  annual  labor  would  be  valid? 


IV,  V,  VI. 

[Same  as  VIII,  IX,  and  X  of  preceding  paper.] 


SAMPLE    EXAMINATION   QUESTIONS. 


687 


VII. 

(a)  What  advantages  flow  from  patenting  a  mining  claim  that  were  not 
possessed  prior  to  patenting?    What  disadvantages,  if  any? 

(b)  What  is  the  measure:  of  damages  where  ore  is  taken  from  your  land, 
(1)  by  innocent  mistake,  and  (2)  with  wrongful  intent? 

VIII. 

X.  wants  to  know  whether — having  made  only  one  discovery,  and  having 
attempted  to  locate  two  full  lode  claims,  one  running  north  from  the  discovery 
and  the  other  south,  so  that  the  south  end  line  of  the  one  which  is  the  north 
end  line  of  the  other  cuts  across  the  middle  of  his  discovery  shaft — he  has 
any  rights  as  to  either  or  both  claims,  or  any  part  of  them,  as  against  subse- 
quent locators? 

IX. 
DIAGRAM  No.  3. 


688  APPENDIX   I. 

In  diagram  No.  3  A.  located  the  Senior  claim  on  vein  a — b,  then  B.  located 
the  Junior  claim  on  vein  c — d,  and  then  C.  located  the  Freshman  claim  on  vein 
•e — f.  Assume  (1)  that  each  made  a  discovery  on  unoccupied  land  of  the  Unit- 
ed States,  and  then  (2)  that  C.'s  sole  discovery  was  on  Senior  ground  within 
the  Junior  lines,  and  then  advise  B.  whether  in  either  case  he  can  protest  or 
adverse,  and,  if  so,  which,  if  C.  applies  for  a  patent  for  the  whole  of  the 
Freshman  claim,  including  all  conflict  areas,  and  A.  is  not  going  to  adverse? 

B.  also  wants  to  know  whether,  if  he  adverses,  and  it  is  too  late  for  A.  to 
adverse,  A,  can  defeat  B.'s  adverse  by  deeding  the  conflict  area  of  the  Senior 
to  C.? 

X. 

(a)  Give  briefly  the  essential  steps  in  the  patenting  of  a  mining  claim. 

(b)  Define  (1)  the  strike  of  a  vein,  and  (2)  the  dip  of  a  vein,  and  explain 
briefly  the  law  of  cross  lodes,  and  of  veins  uniting  on  the  strike  and  on  the 
dip. 

MINING  LAW. 

(January,   1908.) 

(If  in  answering  any  question  you  need  any  further  facts,  make  all  pos- 
sible assumptions  in  regard  to  them.) 

I. 

State  whether  any  of  the  following,  and,  if  any,  which  get  title  to  the 
mining  claims  located:  (1)  A  Chinaman  who  locates  for  himself;  (2)  a  child 
of  five,  whose  father  locates  for  the  child  in  the  child's  name;  (3)  a  French 
corporation;  (4)  a  lunatic;  (5)  a  United  States  deputy  mineral  surveyor. 

Suppose  all  five  should  join  in  the  location  of  one  claim? 

II. 

A.  makes  a  location,  but  fails  to  record  his  location  certificate  within  the 
statutory  time.  Before  the  time  for  A.  to  record  goes  by,  B.  makes  and  per- 
fects a  location  on  a  discovery  outside  of  A.'s  location,  but  one-half  of  B.'s 
location  overlaps  A.'s.  To  whom  does  the  conflict  area  belong  after  the  stat- 
utory time  for  A.  to  record  has  elapsed? 

III. 

(a)  If  a  miner  is  working  on  the  public  domain,  but  has  taken  no  steps 
to  make  a  valid  location,  what  rights  has  he  which  other  prospectors  must 
respect?     May  another  prospector  make  a  location  in  such  a  way  as  to  in- 
clude the  ground  where  the  first  one  is  working? 

(b)  Is  an  unpatented  lode  claim  subject  (1)  to  dower;   (2)  to  execution  levy 
and  sale;  (3)  to  a  homestead  exemption? 

IV. 

(a)  What  is  a  mill  site?    How  is  it  located? 

(b)  Name  the  two  classes  of  mill  sites. 

(c)  On  what,  if  any,  condition  is  an  unpatented  mill  site  retained? 


SAMPLE   EXAMINATION    QUESTIONS.  689 

V. 

(a)  If  a  tunnel  site  owner  discovers  a  lode  in  his  tunnel,  what  kind  of  a 
lode  must  it  be  for  him  to  get  title  to  it? 

(b)  Within  what  surface  area  must  the  lode  apex  for  him  to  acquire  rights 
In  the  lode? 

(c)  To  get  title  to  the  lode  must  he  make  a  surface  location? 

(d)  How  far  may  he  follow  the  lode  from  the  tunnel? 

VI. 

A.  was  one  of  several  locators  of  the  High  Flyer  lode  claim.  He  formed 
with  the  others  the  High  Flyer  Mining  Corporation,  tne  treasury  stock  of 
which  was  sold  to  get  money  to  work  the  mine.  Nearly  all  the  other  stock- 
holders combined  to  get  rid  of  A.,  and  had  a  judgment  creditor  of  A.  levy 
on  and  sell  the  stock  of  A.  in  A.'s  absence  and  without  actual  notice  to  him. 
The  stock  was  bought  in  for  less  than  it  was  worth.  A.,  hearing  of  the  sale 
after  it  is  over,  comes  to  you  in  December  for  advice.  He  tells  you  that  the 
assessment  work  for  the  year  on  the  High  Flyer  claim  has  not  been  done, 
and  that  B.,  one  of  the  few  stockholders  of  the  High  Flyer  Company  friendly 
to  A.,  will  fail  to  do  the  assessment  work  which  he  has  been  employed  to  do 
if  A.,  or  any  one  whom  A.  may  designate,  will  relocate  the  High  Flyer  and 
then  convey  to  B.,  or  to  any  one  whom  B.  may  designate  one-third  of  the 
High  Flyer.  What  advice  do  you  give  A.? 

VII. 

(1)  A.  makes  a  placer  location.    Jn  the  center  a  known  lode  exists,  but 
it  is  not  known  to  extend  to  any  of  the  boundaries  of  the  placer,  and  A.  posts 
warnings  to  all  people  to  keep  off.    May  the  lode  be  located? 

(2)  Suppose  no  lode  is  known  to  exist  in  the  placer,  but  in  A.'s  absence  B. 
enters  the  placer,  and  in  exploring  finds  a  lode,  which  he  traces  to  and  through 
a  boundary  of  A.'s  placer.     Suppose  B.  then  goes  off  the  placer  and,  making 
a  location  600  feet  wide  by  1,500  feet  long,  a  large  part  of  which  is  on  A.'s 
placer,   sinks  a  discovery  shaft  outside  of  A.'s  ground  which  discloses  the 
vein.    What  are  the  rights  of  the  parties? 

VIII. 

(a) ,  Is  "an  adverse  suit"  an  action  at  law  or  a  suit  in  equity? 

(b)  Explain  how  and  when  an  adverse  suit  arises,  in  what  court  it  must 
be  brought,  what  allegations  must  be  contained  in  the  complaint,  and  what 
kind  of  a  verdict  and  of  a  judgment  is  demanded. 

(c)  What  is  the  effect  on  the  adverse  suit  of  a  nonsuit  of  plaintiff? 

(d)  If  the  adverse  suit  is  decided  in  favor  of  the  plaintiff  in  that  suit,  what 
must  he  do  to  patent  title  to  the  land  awarded  to  him? 

IX  AND  X. 

Explain  the  extralateral  right  doctrine,  and  by  diagrams  Illustrate  extra- 
lateral  rights: 

(1)  On  a  discovery  vein,  which  crosses  both  the  lines  which  the  locator 
meant  to  be  side  lines. 
COST.MIN.L.— 44 


690  APPENDIX   I. 

(2)  On   a   discovery   vein,  which   crosses  twice  one  boundary  line  of  the 
location,  but  no  other  line. 

(3)  On  a  broad  discovery  vein,  bisected  on  its  strike  by  the  common  sidi 
line  of  two  locations. 

(4)  On  a  secondary  or  incidental  vein,  where  the  discovery  vein  crosses 
one  side  line  and  one  end  line  of  the  claim,  but  the  secondary  or  incidenta 
vein  crosses  both  end  lines. 

(5)  On  a  secondary  or  incidental  vein,   where  the  discovery  vein  crosses 
both  end  lines,  but  the  secondary  or  incidental  vein  crosses  one  end  line  am 
one  side  line,   but  after  it  leaves  the  side  line  of  the  location  pursues  i 
course  in  a  second  location  practically  parallel  to  the  discovery  vein  of  the 
first  location. 


TABLE  OF  CASES  CITED. 


[THE  FIQUBES  EEFEE  TO   PAGES.] 


Abbott  T  Smith,  482,  492. 

Acme  Cement  &  Plaster  Co.,  90. 

Acme  Oil  &  Min.  Co.  v.  Williams,  479. 

Adam  v.  Norris,  62. 

Adams  v.  Crawford,  206. 

Adams  v.  Polglase,  86,  154,  324,  390. 

Adams  v.  Simmons,  226. 

Adams  v.  Stage,  480. 

Ahern  v.  Dubuque  Lead  &  Level  Min. 

Co.,  535. 

Ah  Hee  v.  Crippen,  61. 
Ah  Yew  v.  Choate,  113. 
Ajax   Gold   Min.   Co.   v.  Hilkey,   443, 

444,  460. 

Alaska  Copper  Co.,  226,  227,  228. 
Alaska    Exploration   Co.   v.   Northern 

Mining  &  Trading  Co.,  498. 
Alaska   Gold   Min.   Co.   v.   Bapbridge, 

148,  397,  534. 
Alaska    Pac.    R.    &    Terminal    Co.   v. 

Copper  River  &  N.  W.  Ry.  Co.,  73. 
Alaska  Placer  Claim,  355. 
Aldeberan  Min.  Co.,  279,  343,  344. 
Alder  Gulch  Consol.  Min.  Co.  v.  Hayes, 

531. 

Alderson  v.  Ennor,  516. 
Aldritt  v.  Northern  Pac.  R.  Co.,  119. 
Alexander  v.   Sherman,  330,  334. 
Alford  v.  Barnum,  115. 
Algonquin  Coal  Co.  v.  Northern  Coal 

&  Iron  Co.,  525. 
Alice  Lode  Min.  Claim,  195. 
Alice  Min.  Co.,  363,  364. 
Allegheny  Oil  Co.  v.  Snyder,  473,  474, 

479. 

Allen  v.  Dunlap,  208. 
Allen  v.  Myers,  375. 
Allen  v.  Pedro,  70. 


Alliance  Trust  Co.  v.  Hardwood  Co., 
517. 

Allyn  v.  Schultz,  377. 

Alta  Mill  Site,  351. 

Altoona  Quicksilver  Min.  Co.  v.  Inte- 
gral Quicksilver  Min.  Co.,  276,  280, 
377,  378,  523,  524. 

Amador  Medean  Gold  Min.  Co.  v. 
South  Spring  Hill  Gold  Min.  Co., 
450. 

Adamor  Queen  Min.  Co.  v.  De  Witt, 
243,  522. 

Ambergris  Min.  Co.  v.  Day,  150,  151, 
519. 

American  Consol.  Min.  &  Mill.  Co.  v. 
De  Witt,  153,  313,  388. 

American  Window  Glass  Co.  v.  In- 
diana Natural  Gas  &  Oil  Co.,  476. 

American  Window  Glass  Co.  v.  Wil- 
liams, 479. 

Ames  v.  Ames,  503. 

Ammons  v.  Toothman,  502. 

Auaconda  Copper  Min.  Co.  v.  Butte 
&  B.  Min.  Co.,  482,  491,  494. 

Anaconda  Copper  Min.  Co.  v.  Heinze, 
406,  414. 

Anchor  v.  Howe,  50,  367,  368. 

Anderson  v.  Besser,  513,  516. 

Anderson  v.  Caughey,  25,  152,  206,  211, 
277. 

Anderson  v.  Hapler,  517. 

Anthony  v.  Jillson,  168,  211,  249,  250. 

Antoine  Co.  v.  Ridge,  497. 

Argentine  Min.  Co.  v.  Benedict,  372. 

Argentine  Min.  Co.  v.  Terrible  Min. 
Co.,  155,  181,  420,  423,  437,  456. 

Argillite  Ornamental  Stone  Co.,  148, 
347. 

Argonaut  Consol.  Min.  &  Mill.  Co.  v. 
Turner,  204,  397. 


COST.MIN.L. 


(691) 


692 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Argonaut  Min.  Co.  v.  Kennedy  Min.  & 
Mill.  Co.,  415,  416,  417. 

Armstrong  v.  Ca.ldwell,  525. 

Armstrong  v.  Lower,  180,  200,  203, 
311,  314,  411,  440. 

Arnold  v.  Bennett,  516. 

Arnold  v.  Weil,  463. 

Ashman  v.  Wigton,  503. 

Aspen  Consol.  Min.  Co.  v.  Williams, 
84. 

Aspen  Min.  &  Smelting  Co.  v.  Rucker, 
518,  521. 

Atchison  v.  Peterson,  527,  531. 

Atkins  v.  Hendree,  18,  152,  198. 

Atlantic  &  G.  C.  Consol.  Coal  Co.  v. 
Maryland  Coal  Co.,  514. 

Attorney  General  v.  Morgan,  13. 

Aurora  Hill  Consol.  Min.  Co.  v.  Eighty- 
Five  Min.  Co.,  156,  286,  321,  358,  359. 

Aurora  Lode  v.  Bulger  Hill  &  Nug- 
get Gulch  Placer,  264,  363. 

Austin  v.  Huntsville  Coal  &  Min.  Co., 
513. 

Axiom  Min.  Co.  v.  White,  278,  307. 

Aye  v.  Philadelphia  Co.,  473,  476,  479, 
480,  486. 

Ayers  v.  Daly,  352. 

B 

Baca  Float  No.  3,  63. 

Backer  v.  Penn  Lubricating  Co.,  474. 

Back  v.  Sierra  Nevada  Consol.  Min. 
Co.,  237,  239,  371. 

Badger  Gold  Min.  &  Mill.  Co.  v.  Stock- 
ton Gold  &  Copper  Min.  Co.,  295, 
297,  298,  306,  307,  525. 

Bagnall  v.  L.  &  N.  W.  R.  Co.,  507. 

Baillie  v.  Larson,  243. 

Baird  v.  Williamson,  534. 

Baker  v.  Clark,  484. 

Baker  v.  Hart,  515. 

Baker  v.  Pittsburg,  C.  &  W.  R.  Co., 
504. 

Bakersfield  &  Fresno  Oil  Co.  v.  Kern 
County,  395,  498. 

Baldwin  Star  Coal  Co.  v.  Quinn,  398. 

Baldwin  v.  Starks,  52. 

Ballard  v.  Golob,  294,  401. 

Bamford  v.  Lehigh  Zinc  &  Iron  Co., 
486. 

Bank  of  Hartford  County  v.  Water- 
man, 508. 


Bannan  v.  Graeff,  486. 

Barclay  v.  Abraham,  471. 

Barden  v.  Northern  Pac.  R.  Co.,  57,  75, 

76,  79. 

Barklage  v.  Russell,  391,  524. 
Barnard  v.  Monongahela  Natural  Gas 

Co.,  471,  480. 

Barnette  v.  Freeman,  160,  162. 
Barney  v.  Conway,  381. 
Barnhart  v.  Lockwood,  474. 
Barnsdall  v.  Boley,  479. 
Barrett  v.  Kansas  &  Texas  Coal  CoM 

503. 

Barton  Coal  Co.  v.  Cox,  515. 
Bash  v.  Cascade  Min.  Co.,  359,  500. 
Basin  Mining  &  Concentrating  Co.  v. 

White,  306,  348. 
Baxter    Mountain    Gold    Min.    Co.    v. 

Patterson,  191,  215. 
Bay  v.  Oklahoma  So.  Gas,  Oil  &  Min. 

Co.,  84,  85,  86,  91,  120,  162,  163,  164t 

499. 

Bay  State  Petroleum  Co.  v.  Penn  Lub- 
ricating Co.,  473. 
Beals  v.  Cone,  126,  132,  154,  160,  161, 

181,  182,  190,  194,  223,  274,  307,  339, 

340,  386,  520. 
Beard  v.  Federy,  62. 
Beardsley  v.  Kansas  Natural  Gas  Co., 

475,  521. 

Beaudette  v.  Northern  Pac.  R.  Co.,  119. 
Becker  v.  Pugh,  156. 
Beck  v.  O'Connor,  492. 
Behrends  v.   Goldsteen,   92,    151,   368, 

370,  374. 

Beik  v.  Nickerson,  203. 
Belcher  Consol.  Gold  Min.  Co.  v.  De- 

ferrari,  290,  292. 
Belk  v.   Meagher,   156,  220,  274,   288, 

310,  313,  321,  322,  524. 
Bell  v.  Bed  Rock  Tunnel  &  Min.  Co., 

28,  304,  308. 

Bell  v.  Skillicorn,  405,  406. 
Belligerent    &     Other     Lode     Mining 

Claims,  420,  422. 
Beltz  v.  Mathiowitz,  56. 
Bennet,  Jr.,  246. 
Bennett  v.   Harkrader,  214,  215,  378, 

379,  382. 

Bennett   v.   Waller,   499. 
Benson  Mining  &  Smelting  Co.  v.  Al 

ta  Mining  &  Smelting  Co.,  286,  514. 
Bentley  v.  Brossard,  491,  492. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


603 


Benton  v.  Johncox,  527,  528. 

Berentz  v.  Belmont  Oil  Min.  Co.,  510. 

Berkey    v.    Bervvind-Wliite   Coal    Min. 

Co.,  505,  518. 
Bernard  v.  Parnielee,  380. 
Bernardy  v.  Colonial  &  United  States 

Mortg.  Co.,  501. 
Bernier  v.   Bernier,   54. 
Berry  v.  Woodburn,  482. 
Bessemer  Irr.   Ditch   Co.   v.   Woolley, 

530. 

Bettman  v.  Harness,  475. 
Beveridge   v.    Northern   Pac.    R.    Co., 

82. 

Bevis  v.  Markland,  163,  165. 
Bewick  v.   Muir,  143,   145. 
Bigelow,  468. 
Big  Hatchet  Consol.  Min.  Co.  v.  Col- 

vin,  421. 

Biglow  v.  Conradt.  158,  165,  222. 
Billings  v.  Aspen  Mining  &  Smelting 

Co.,  168,  170. 

Bingo  Min.  Co.  v.  Felton,  485. 
Binswanger  v.  Henninger,  395,  494. 
Bishop  v.  Baisley,  276,  292,  308. 
Bisinark   Mountain  Gold  Min.   Co.   v. 

North  Sunbeam  Gold  Co.,  190,  214, 

215,  220,  223,  285. 
Bissell  v.  Foss,  492. 
Black  v.  Elkhorn  Min.  Co.,  300,  303, 

398. 
Blackburn  v.  Portland  Gold  Min.  Co., 

375,  377. 

Blackburn  v.  U.  S.,  115. 
Blackmarr  v.  Williamson,  491,  492. 
Blackmore  v.  Reilly,  102. 
Blake  v.  Butte  Silver  Min.  Co.,  373. 
Blake  v.  Lobb's  Estate,  486. 
Blake  v.  Thorne,  334. 
Blake  v.  Toll,  367. 

Bluebird  Min.  Co.  v.  Largey,  126,  404. 
Blue  Bird  Min.  Co.  v.  Murray,  519. 
Bluestone  Coal  Co.  v.  Bell,  486. 
Board  of  Control  v.  Torrence,  94. 
Board  of  Education  v.  Mansfield,  99, 

102. 
Board  of  Sup'rs  of  Hancock  County  v. 

Imperial   Naval  Stores  Co.,  484. 
Bogart  v.  Amanda  Consol.  Gold  Min. 

Co.,  453. 

Boggs  v.  Merced  Min.  Co.,  10,  15. 
Bolles  Woodenware  Co.  v.  U.  S.,  515. 


Bonanza   Consol.   Min.   Co.   v.  Golden 

Head  Min.  Co.,  205,  214,  215. 
Bond  v.  State  of  California,  09. 
Bonesell  v.  McNider,  357,  3GG. 
Bonner  v.  Meikle,  97,  98,  100,  150,  158, 

159,   370. 

Bonner  v.  Rio  Grande  S.  R.  Co.,  73.  7G. 
Book  v.  Justice  Min.  Co.,  106,  128,  132. 

148,  174,  191,  205,  206,  216,  280,  284, 

285,  321,  440,  457. 
Boston  &  M.  Consol.  Copper  &  Silver 

Min.  Co.  v.  Montana  Ore  Purchas- 
ing Co.,  405,  452. 
Boucher  v.  Mulverhill,  482. 
Boyd  v.  Desrozier,  518. 
Boyer  v.  Fuliner,  486. 
Bradbury  v.  Davis,  500,  501. 
Bradford,  171. 
Bradford   v.   Morrison,   395,  497,  498, 

509. 

Bradley  v.  Johnson,  524. 
Brady  v.  Husby,  206,  214,  215. 
Brady  v.  Smith,  503. 
Brady's  Mortgagee  v.  Harris,  99. 
Bramlett  v.  Flick,  191,  208,  214,  219, 

324. 

Branagan  v.  Dulaney,  453,  454. 
Brand  v.  Consolidated  Coal  Co.,  502. 
Brandon  v.  Ard,  81. 
Brandt  v.  Wheaton,  156. 
Bretell  v.  Swift,  353. 
Brewster  v.  Lanyon  Zinc  Co.,  473,  479. 

480. 

Brewster  v.  Shoemaker,  149,  160,  242. 
Brice,  468. 

Brick  Pomeroy  Mill  Site,  226. 
Brien  v.  Moffitt,  385. 
Brigham  City  v.  Rich,  65,  69. 
Brigham  v.  Smith,  507. 
Bright  v.  Elkhorn  Min.  Co.,  358,  386. 
Brinkmeyer  v.   Rankin,  521. 
Britton  v.  Turner,  514. 
Brockbank    v.    Albion    Min.    Co.,    193, 

194,  195,  250,  314,  317. 
Broder  v.  Natoina  Water  &  Min.  Co., 

527. 

Brodie  Gold  Reduction  Co.,  229,  230. 
Brooks  v.  Cook,  486. 
Brooks  v.   Kunkle,  472. 
Brophy  v..O'Hare,  101. 
Brothers  v.  Hurdle.  517. 
Brown  v.  Baker,  527. 


094 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Brown  v.  Beecher,  476. 

Brown  v.  Bryan,  493. 

Brown  v.  Caldwell,  517. 

Brown  v.  Challis,  521. 

Brown  v.  Fowler,  476. 

Brown  v.  Gurney,  222,  302,  313,  326, 
327,  339,  359,  3G5,  379,  389. 

Brown  v.  Levan,  191,  214. 

Brown  v.  Northern  Pac.  R.  Co.,  119. 

Brown  v.  Ohio  Oil  Co.,  474. 

Brown  v.  Oregon  King  Min.  Co.,  220, 
223,  320,  325. 

Brown  v.  Quartz  Min.  Co.,  105. 

Brown  v.   Spilman,  471,  477. 

Brown  v.  249  &  256  Quartz  Min.  Co., 
158. 

Brown  v.  Wilmore  Coal  Co.,  486. 

Brownfield  v.  Bier,  151,  261,  263. 

Brundy  v.  Mayfield,  297. 

Bryan  v.  McCaig,  276,  308. 

Buchannan  v.  Cole,  484. 

Buckeye  Min.  &  Mill.  Co.  v.  Carlson, 
125,  143,  488. 

Buckley  v.  Fox,  168. 

Buffalo  Valley  Oil  &  Gas  Co.  v.  Jones, 
479. 

Buffalo  Zinc  &  Copper  Co.  v.  Crump, 
36,  132,  165,  218,  288,  303,  304,  307, 
524. 

Bulette  v.  Dodge,  156,  159,  185. 

Bullion  Beck  &  Champion  Min.  Co.  v. 
Eureka  Hill  Min.  Co.,  145,  438. 

Bunker  Hill,  etc.,  Co.  v.  Shoshone  Min. 
Co.,  408. 

Bunker  Hill  &  Sullivan  Mining  &  Con- 
centrating Co.  v.  Empire  State  Idaho 
Mining  &  Developing  Co.,  131,  195, 
223,  337,  396,  413,  421,  424,  435,  444, 
456. 

Bunker  Hill  &  Sullivan  Mining  &  Con- 
centrating Co.  v.  Shoshone  Min.  Co., 
148,  152. 

Burfenning  v.  Chicago,  St.  P.,  M.  &  O. 
R.  Co.,  393. 

Burgner  v.  Humphrey,  505,  506. 

Burke  v.  McDonald,,  126,  133,  159,  192, 
198,  382. 

Burns  v.  Clark,  105,  158,  159,  226. 

Burns  v.  Schoenfeld,  105,  158. 

Burnside  v.  O'Connor,  153,  313,  388. 

Buss  v.  Dyer,  507. 

Butler  v.  Good  Enough  Min.  Co.,  27, 
191,  2]  8. 


Butte,  A.  &  P.  R.  Co.  v.  Montana  U.  R. 

Co.,  523. 
Butte  City  Smoke  House  Lode  Cases, 

99,   370,  373,   394,   395. 
Butte  City  Water  Co.  v.  Baker,  21,  23, 

212,  213. 
Butte  Consol.  Min.  Co.  v.  Barker,  183, 

222,    223,    314,    337. 
Butte  Hardware  Co.  v.  Cobban,  372. 
Butte    Hardware    Co.    v.    Frank,   372, 

373,  395,  497,  498,   509,  510. 
Butte  Land  &  Inv.  Co.  v.  Merriman, 

267,  382. 

Butte  &  B.  Consol.  Min.  Co.  v.  Mon- 
tana Ore-Purchasing   Co.,   493,   494, 

495. 

Butte  &  B.  Min.  Co.,  363. 
Butte  &  B.  Miu.  Co.  v.  Sloan,  262,  263, 
Butte  &   B.  Min.   Co.   v.    Societe  An- 

onyme  des  Mines  de  Lexington,  135, 

413. 

Bnttz  v.  Northern  Pac.  R.  Co.,  89. 
Bybee  v.  Hawkett,  490. 
Byrnes  v.  Douglas,  523. 


Cagle  v.  Dunham,  51. 

Cahoon  v.  Bayaud,  484. 

Cain  v.  Addenda  Min.  Co.,  369. 

Cain  v.  Carrier,  468. 

Caldwell  v.  Copeland,  525. 

Caldwell   v.    Fulton,    502,   503. 

Caledonia,  G.  M.  Co.  v.  Noonan,  91. 

Caledonia  Min.  Co.  v.  Rowen,  56. 

Caley  v.  Coggwell,  491. 

Caihoun  Gold  Min.  Co.  v.  Ajax  Gold 

Min.  Co.,  16,  243,  393,  396,  397,  401, 

453,  454. 

Callahan  v.  James,  100,  101,  307. 
Calor  Oil  &  Gas  Co.  v.  Frauzell,  47L 
Cambers  v.  Lowry,  104. 
Cameron,  354. 
Cameron  Lode,  99. 
Cameron  v.  U.  S.,  64. 
Camfield  v.   U.  S..  85. 
Campbell  v.  Ellet,  235,  240,  241,  242. 
Campbell   v.    Golden   Cycle   Min.   Co., 

126. 
Campbell  v.  Louisville  Coal  Min.  Co., 

505,  506. 

Campbell  v.  Rankin,  26. 
Campbell  v.  Taylor,  308. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


695 


Cape  May  Mining  &  Leasing  Co.  v. 
Wallace,  202,  363,  3G4. 

Capital  No.  5  Placer  Min.  Claim,  .355. 

Capner  v.  Flemington  Min.  Co.,  509. 

Capricorn  Placer,  353. 

Cardelli  v.  Conistock  Tunnel  Co.,  530. 

Carlin  v.   Chappel,  505,  507. 

Carlin  v.  Freeman,  191,  314. 

Carney  v.  Arizona,  G.  M.  Co.,  270. 

rurpiMiter  v.  Liugenfelter,  514. 

Carr  v.  Fife,  51. 

Carr  v.  Huntington  Light  &  Fuel  Co., 
475. 

Carr  v.  Quigley,  64. 

Caretto  &  Other  Lode  Claims,  279,  351. 

Carson  v.  Gentner,  527. 

Carson  v.  Hayes,  533. 

Carson  City  Gold  &  Silver  Min.  Co.  v. 
North  Star  Min.  Co.,  161,  393,  396, 
397,  406,  416,  417,  421,  427,  500. 

Carter  v.  Bacigahipi,  190,  191,  209, 
215,  304. 

Carter  v.  Thompson,  102. 

Carter  v.  Wakeman,  529. 

Cascaden  v.  Bartolis,  100,  148,  164. 

Cascaden  v.  Dunbar,  401,  481,  498. 

Cascaden  v.  Wimbish,  510. 

Casey  v.  Thieviege,  261. 

Cassell  v.  Crothers,  476. 

Castillero  v.  U.  S.,  2,  61. 

Castle  v.  Womble,  57. 

Gates  v.  Producers'  &  Consumers'  Oil 
Co.,  400. 

Catlin  Coal  Co.  v.  Lloyd,  525. 

Catron  v.  Laughlin,  62. 

Catron  v.  Old,  433,  434,  443,  444. 

Cecil  v.  Clark,  495. 

Cedar  Canyon  Consol.  Min.  Co.  v.  Yar- 
wood,  496. 

Central  Eureka  Min.  Co.  v.  East  Cen- 
tral Eureka  Min.  Co.,  416,  458. 

Central  Ohio,  etc.,  Co.  v.  Eckert,  472. 

Chaffee,  In  re,  235. 

Chambers  v.  Harrington,  155,  271,  279. 

Chambers  v.  Jones,  396. 

Chambers  v.  Smith,  478. 

Champion  Min.  Co.  v.  Consolidated 
Wyoming  Gold  Min.  Co.,  436,  457. 

Chaney  v.  Ohio  &  I.  Oil  Co.,  476. 

Chapman  v.  Toy  Long,  270,  396. 

Charles  O.  De  Land,  468. 

Charles  Lennig,  227,  2,r;0.  238. 

Charles  S.  Morrison,  465,  466. 


Chas.  W.  Steele,  353. 

Churl  ton  v.  Kelly,  148,  149,  151,  15(5, 

159,  162,  164,  176,  186. 
Charter  Oak  Life  Ins.  Co.  v.  Stephens, 

509. 
Chartiers   Block   Coal   Co.  v.   Mellon, 

504. 
Cheeney  v.  Nebraska  &  C.  Stone  Co., 

515. 

Cheesman  v.  Hale,  533. 
Cheesman  v.  Hart,  220,  407,  449. 
Cheesman   v.    Shreeve,    128,   220,   223, 

338,  340,  405,  40G,  412,  419,  515. 
Cherokee  Nation  v.  Hitchcock,  44. 
Chessman,  277. 
Chicago  &  A.  Oil  &  Min.  Co.  v.  United 

States  Petroleum  Co.,  476. 
Chicago  &  A.  R.  Co.  v.  Brandau,  505, 

508. 

Childers  v.  Neely,  491,  492. 
Chisholm  v.  Eagle  Ore  Sampling  Co., 

489. 

Chormicle  v.  Hiller,  88. 
Chrisman  v.  Miller,  150,  162,  164,  1C5. 
Christian  F.  Ebinger,  50. 
Church  of  Holy  Communion  v.  Pater- 
son  Extension  R.  Co.;  508. 
Cisna  v.  Mallory,  483. 
City  of  Deadwood  v.  Whittaker,  91. 
City  of  Des  Moines  v.  Hall,  101. 
City   of  Leadville  v.   Bohn   Min.   Co., 

100,  516. 

City  of  New  Haven  v.  Hotchkiss,  503. 
Clark  v.  Babcock,  486. 
Clark  v.  Barnard,  525. 
Clark  v.  Fitzgerald,  426. 
Clark  v.  Herington,  80. 
Clark  v.  Nash,  522. 
Clark  v.  Taylor,  343. 
Clark  v.  Wall,  485,  518. 
Clarno  v.  Grayson,  487. 
Clary  v.  Hazlitt,  267,  394. 
Clearwater  Short-Line  R.  Co.  v.   San 

Garde,  191,  215. 
Cleary   v.   Skiffich,  27,   195,  225,   231, 

370,  524. 

Cleminger  v.  Baden  Gas  Co.,  479. 
Clemmons  v.  Gillette,  68. 
Cleveland  v.  Eureka  No.  1  Gold  Min. 

&  Mill.  Co.,  287,  326.  356,  372,  391. 
Clift  v.  Clift,  398. 
Clifton  v.  Montague,  486. 
Clinton  S.  Conant,  464. 


696 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Clipper  Min.  Co.,  391. 

Clipper  Min.  Co.  v.  Eli  Min.  &  Land 

Co.,  86,  157,  264,  265,  266,  267,  369, 

390,  396. 

Cobb  v.  Oregon  &  C.  R.  Co.,  467. 
Coffee  v.  Emigh,  458,  511. 
Coffinberry  v.  Sun  Oil  Co.,  479. 
Coffin  v.  Left  Hand  Ditch  Co.,  528. 
Cole  v.  Cady,  518. 
Coleman  v.  Chadwick,  506. 
Colenaan  v.  Coleman,  145,  495. 
Coleman  v.  Curtis,  282,  283,  284,  285. 
Coleman  v.  Davis,  220. 
Coleman  v.  Homestake  Min.  Co.,  371. 
Colgan  v.  Forest  Oil  Co.,  474. 
Collins  v.  Bartlett,  342. 
Collins  v.  Bubb,  90. 
Collins  v.  Chartiers  Gas  Co.,  532. 
Collins  v.  Gleason  Coal  Co.,  505,  507. 
Collins  v.  McKay,  266,  501. 
Colman  v.  Clements,  25,  27. 
Colomokas  Gold  Min.  Co.,  94. 
Colorado    Cent.    Consol.    Min.    Co.    v. 

Turck,  382,  407,  414,  423,  439,  449, 

513. 
Colorado  Coal  &  Iron  Co.  v.  U.  S.,  84, 

87,  399. 

Colorado  M.  R.  Co.  v.  Croman,  200. 
Columbia  Copper  Min.  Co.  v.  Duchess 

Min.  Mill.  &  Smelting  Co.,  149,  208, 

218. 

Colwell  v.  Smith,  53. 
Combs  v.  Virginia  Iron,  Coal  &  Coke 

Co.,  511,  513. 
Conant,  464. 

Condon  v.  Mammoth  Min.  Co.,  353. 
Cone  v.  Roxanna  Co.,  243. 
Congdon  v.  Olds,  490. 
Conger  v.  Weaver,  15. 
Conlin  v.  Kelly,  119,  246. 
Conn  v.  Oberto,  299,  303,  304. 
Connole  v.  Boston  &  M.  Consol.  Cop- 
per &  Silver  Min.  Co.,  494. 
Connolly  v.  Hughes,  381. 
Conrad  v.  Morehead,  486. 
Consolidated  Channel   Co.   v.   Central 

Pac.  R.  Co.,  522. 
Consolidated  Coal  Co.  of  St.  Louis  v. 

Baker,  509. 
Consolidated  Coal   Co.   v.   Peers,   484, 

4S5. 

Consolidated  Rep.  M.  M.  Co.  v.  Leba- 
non M.  Co.,  179. 


Consolidated  Wyoming  Gold  Min.  Co. 

v.  Champion  Min.  Co.,  132,  202,  406, 

411,  416,  425,  426,  429,  457. 
Consumers'  Gas  Trust  Co.  v.  Littler, 

480. 
Consumers'  Gas  Trust  Co.  v.  Worth, 

479. 
Continental   Divide   Min.    Inv.   Co.    v. 

Bliley,  493. 

Contreras  v.  Merck,  378. 
Conway  v.  Hart,  149,  151,  193,  195,  198, 

314. 
Coolbaugh  v.  Lehigh  &  Wilkes-Barre 

Coal  Co.,  484,  509. 
Cooper  v.  Roberts,  66. 
Copper  Bullion  &  Morning  Star  Lode 

Min.  Claims,  358. 
Copper  Glance  Lode,  279,  344. 
Copper  Globe  Min.  Co.  v.  Allman,  21, 

147,  156,  158,  182,  193,  207,  215,  218, 

220,  308,  325. 

Copper  Hill  Min.  Co.  v.  Spencer,  497. 
Copper  King  v.  Wabash  Min.  Co.,  518. 
Copper  River  Min.  Co.  v.  McClellan, 

174,  400,  483. 

Core  v.  New  York  Petroleum  Co.,  480. 
Corning  Tunnel  Co.  v.  Pell,  234,  242. 
Cosmopolitan  Min.  Co.  v.  Foote,  441, 

449. 
Cosmos  Exploration  Co.  v.  Gray  Eagle 

Oil  Co.,  53,  93. 
Costello  v.  Mulheim,  525. 
Costello  v.  Scott,  482,  490. 
Couch  v.  Welsh,  485. 
County  of  Yuba  v.  Cloke,  533,  534. 
Cowell  v.  Lammers,  156. 
Cox  v.  Clough,  523. 
Cragie  v.  Roberts,  51,  85. 
Craigin  v.  Powell,  49. 
Craig  v.  Thompson,  156,  190,  215,  223, 

324,  338. 

Crane  v.  Winsor,  531. 
Cranes  Gulch  Min.  Co.  v.  Scherrer,  267, 

394. 

Crary  v.  Dye,  297,  306. 
Crawford  v.  Forest  Oil  Co.,  514. 
Craw  v.  Wilson,  481. 
Credo  Mining  &  Smelting  Co.  v.  High- 
land Min.  &  Mill.  Co.,  190,  191,  204, 

214. 
Creede  &  C.  C.  Min.  &  Mill.  Co.  v.  Uin- 

ta  Tunnel,  Min.  &  Transp.  Co.,  1.13, 

160,  161,  175,  201,  233,  237,  239,  241, 

243,  371,  394,  396,  397,  401. 


CASES  CITED. 


G97 


[The  figures  refer  to  pages.] 


Crescent  Min.  Co.  v.  Silver  King  Min. 

Co.,  518,  530. 
Cripple   Creek   Gold   Min.    Co.  v.   Mt. 

Rosa    Mining,   Milling   &   Land  Co., 


Min.  M.  &  S.  Co.  v.  Colorado 
Land  &  M.  Co.,  168,  194,  204. 
Cronin  v.  Bear  Creek  Gold  Min.  Co., 

y  &  Other  Lode  Claims,  352. 
Grossman  v.  Pendery,  155.  156,  159. 
Crown  Point  Min.  Co.  v.  Buck,  195. 
Crown  Point  Min.  Co.  v.  Crismon,  192, 

1M',  288. 

Crurnbo  v.  Wallsend  Local  Board,  508. 
Cruse  v.  McCauley,  527. 
Cullacott  v.  Cash  G.  &  S.  M.  Co.,  393. 
Cunningham  v.  Pirrung,  307,  316. 
Currency  Min.  Co.  v.  Bentley,  382. 


Dazsett  v.  Treka  Min.  &  Mill.  Co.,  185, 

206,  413. 
Dahl  v.  Raunheim,  261,  262,  264,  369, 

372. 
Dale  &  Bennett  v.  Goldenrod  Min.  Co., 

490. 

Dall  v.  Confidence  Silver  Min.  Co.,  521. 
Dalliba  v.  Riggs,  520. 
Daniel  Cameron,  354. 
Darser  v.  Le  Sieur,  215. 
Dark  v.  Johnston,  473,  475,  485. 
Darley  Main  Colliery  Co.  v.  Mitchell, 

508. 

Darling  Placer  Claim,  361. 
Darvill  v.  Roper,  144. 
David  Hunter,  In  re,  235. 
Davidson  v.  Bordeaux,  149,  284,  285. 
Davidson  v.  Calkins,  375,  512. 
Davidson  v., Eliza  Gold  Min.  Co.,  357, 

366. 

Davidson  v.  Fraser,  370,  371,  372. 
Davis,  64. 

Davis  v.  Butler,  303,  304. 
Davis  v.  Dennis.  173,  303,  512. 
Davis  v.  Gale,  530. 
Davis  v.  McDonald,  380,  384. 
Davis  v.  Shepherd,  195,  197,  396,  415, 

419,  421,  449,  456,  r>2'. 
Dnvis  v.  Wiebbold,   97,   100,   115,  203, 

394. 


Dayton  Gold  &  Silver  Min.  Co.  v.  Sea- 
well.  523. 

De  Cambra  v.  Rogers,  51. 
Decker  v.  Howell,  490,  492. 
Deeney  v.  Mineral  Creek  Mill.  Co.,  170, 

210,  223,  378,  384.       - 
Deffeback  v.  Hawke,  21,  97,  112,  359, 

394. 

De  Land,  468. 
Delaware,  L.  &  W.  R.  Co.  v.  Gleason, 

126. 
Delaware,  L,  &  W.  R.  Co.  v.  Sanderson, 

484. 

Dellapiazza  v.  Foley,  492. 
Delnioe  v.  Long,  297. 
Del   Monte  Min.  &   Mill.   Co.   v.   Last 

Chance  Min.  &  Mill.  Co.,  16,  17,  143. 

185,  195,  408,  418,  419,  421,  422,  424, 

425.  426,  427,  434,  435,  441,  450,  451. 
Del   Monte  Min.    &   Mill.   Co.   v.   New 

York  &  L.  C.  Min.  Co.,  417. 
De  Long  v.  Hine,  351. 
De  Xecochea  v.  Curtis,  529. 
Deniss  v.  Sinnott  376. 
Denniston  v.  Haddock,  503. 
Deno  v.  Griffin,  286,  384,  393. 
Denver  &  R.  G.  R.  Co.  v.  Wilson,  73. 
Derry  v.  Ross,  303. 
Deseret  Salt  Co.  v.  Tarpey,  75,  78. 
Desloge  v.  Pearce,  485. 
Detlor  v.  Holland,  120,  473. 
De  Wolfskill  v.  Smith,  341. 
Diamond    Iron   Min.    Co.    v.    Buckeye 

Iron  Min.  Co.,  486. 
Diamond  Plate  Glass  Co.  v.  Echelbarg- 

er,  476. 
Dibble  v.  Castle  Chief  Gold  Min.  Co., 

282,  283,  307,  520. 
Dickey    v.   Coffeyville   Vitrified   Brick, 

&  Tile  Co.,  475. 
Dill  v.  Fraze,  473. 
Dillon  v.  Bayliss,  214,  215. 
Diniick  v.  Shaw,  517. 
Dodge  v.  Chambers,  491. 
Doe  v.  Sanger,  204,  221,  419. 
Doe  v.  Tyler,  196. 
Doe  v.  Waterloo  Min.  Co.,  26,  172,  183, 

188,  192,  210,  224,  406,  408,  414,  419, 

439,  499. 

Doherty  v.  Morris,  281,  332,  333,  335. 
Dolan  v.  Passmore,  213. 
Dolles  v.  Hnmberg  Consol.  Mines,  279. 
Donahue  v.  Meister,  208,  376. 


698 


CASES    CITED. 


[The  figures  refer  to  pages.] 


Donk  Bros.  Coal  &  Coke  Co.  v.  No- 

vero,  509. 
Donovan  v.  Consolidated  Coal  Co.,  513, 

515. 

Doolan  v.  Carr,  64,  393. 
Doon  v.  Tesch,  383. 
Doran  v.  Central  Pac.  R.  Co.,  13,  72,  73. 
Dorr  v.  Reynolds,  484. 
Dorsey  v.  Newcomer,  482,  490,  493. 
Dotson  v.  Arnold,  386. 
Dougherty  v.  Chestnutt,  515. 
Doughterty  v.  Creary,  492. 
Doughty   v.  Minneapolis,   St.  P.  &   S. 

S.  M.  R.  Co.,  73. 
Douglass  v.  Byrnes,  523. 
Dower  v.  Richards,  101,  '243. 
Doyle  v.  Burns,  481. 
Drake  v.  Gilpin  Min.  Co.,  334. 
Draper  v.  Douglass,  498. 
Drummond  v.  Long,  191,  215. 
Ducie  v.  Ford,  373. 
Duffield  v.  Hue,  474. 
Duffy  v.  Mix,  498. 
Duffy  Quartz  Mine,  102. 
Dufresne  v.  Northern  Light  Min.  Co., 
.  389. 
Dnggan  v.  Davey,  137,  138,  139,  140, 

406,  414,  519. 
Duke  v.  Hague,  476. 
Duluth  &  Iron  Range  R.  Co.  v.  Roy, 

54,  330,  334. 
Duncan  v.  Fulton,  190,  191,  221,  223, 

312,  336. 

Duncan  v.  Navassa  Phosphate  Co.,  119. 
Dunham  v.  Kirkpatrick,  120,  245. 
Dunlap  v.  Pattison,  173. 
Dunphy,  346. 

Du  Prat  v.  James,  156,  281,  288,  320. 
Durant  v.  Corbin,  91,  173. 
Durant  Min.  Co.  v.  Percy  Consol.  Min. 

Co.,  513,  514,  515. 
Durell  v.  Abbott,  379. 
Durgan  v.  Redding,  370,  378. 
Duryea   v.    Boucher,    259. 
Duryea  v.  Burt,  490,  492. 
Duxie  Lode,  181. 
Dwinnell  v.  Dyer,  21. 
Dye  v.  Crary,  297,  306. 


Early  v.  Friend,  495. 
East  Central  Eureka  Min.  Co.  v.  Cen- 
tral Eureka  Min.  Co.,  407,  415,  416, 

458. 


East  Jersey  Iron  Co.  v.  Wright,  485. 

Eaton  v.  Norris,  188,  219. 

Eberle  v.  Carmichael,  149,  278,  279,  481. 

Eberville  v.  Leadville  Tunneling,  Min- 
ing &  Drainage  Co.,  524. 

Ebinger,  Christian  F.,  50. 

Eclipse  Gold  &  Silver  Min.  Co.  v. 
Spring,  373,  416,  440. 

Eclipse  Mill  Site,  300. 

Eclipse  Oil  Co.  v.  South  Penn  Oil  Co., 
472. 

Edsall  v.  Merrill,  494,  495. 

Edwards  v.  Allouez  Min.  Co.,  532. 

Edwards  v.  McClurg,  484 

Ege  v.  Kille,  514. 

Eilers  v.  Boatman,  156,  187,  194,  198, 
206,  214,  412,  513. 

Elda  Min.  &  Mill.  Co.,  84. 

Elda  Min.  &  Mill.  Co.  v.  Mayflower 
Gold  Mining  Co.,  364. 

Elder  v.  Horseshoe  Min.  &  MilL  Co., 
294,  295,  290. 

Elder  v.  Lykens  Valley  Coal  Co.,  532, 

Electro  Magnetic  M.  &  D.  Co.  v.  Van 
Auken,  104,  182,  183. 

Elijah  M.  Dunphy,  346. 

Elison,  350. 

Elk  Fork  Oil  &  Gas  Co.  v.  Jennings, 
476,  479. 

Ellet  v.  Campbell,  235,  241,  242. 

El  Paso  Brick  Co.,  352. 

Einblen  v.  Lincoln  Land  Co.,  50. 

Emerson  v.  McWhirter,  28,  277,  288, 
307. 

Emery  v.  League,  472. 

Empire  Gold  Min.  Co.  v.  Bonanza  Gold 
Min.  Co.,  513. 

Empire  Mill.  &  Min.  Co.  v.  Tombstone 
Mill.  &  Min.  Co.,  424. 

Empire  State-Idaho  Mining  &  Develop- 
ing Co.  v.  Bunker  Hill  &  Sullivan 
Mining  &  Concentrating  Co.,  195, 
222,  396,  397,  421,  435,  437,  438,  456, 
521. 

English  v.  Johnson,  26.  2S,  161,  198. 

Enid  &  A.  R.  Co.  v.  Kepliart,  73. 

Enterprise  Min.  Co.  v.  Rico-Aspen  Con- 
sol. Min.  Co.,  234,  235,  237,  243,  244, 
371. 

Entwhistle  v.  Henke,  485. 

Erhardt  v.  Boaro,  116,  157,  158,  177, 
185,  192,  207,  208,  274,  517. 

Erickson  v.  Michigan  Land  &  Iron  Co., 
506,  507. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


699 


Ervin  v.  Masterman,  492. 

Erwin,  Appeal  of,  489. 

Erwin  v.  Perego,  152. 

Estes  v.  Timmons,  51. 

Esther  F.  Files.  -1(55. 

Enbanks  v.  Petree,  482,  483. 

Eureka  Consol.  Min.  Co.  v.  Richmond 

Min.  Co.,  18,  125,  126,  128,  130,  136, 

401,  417,  419. 


Fairplay  Hydraulic  Min.  Co.  v.  Wes- 

ton,  530. 

Fairview  Coal  Co.  v.  Hay,  506. 
Fanker  v.  Anderson,  478. 
Farmers'  Loan  &  Trust  Co.  v.  Grape 

Creek  Coal  Co.,  520. 
Farmington  Gold  Min.  Co.  v.  Rhymney 

Gold  &  Copper   Co.,   188,   190,   191, 

213,  214,  215. 
Farrell  v.  Lockhart,  151,  152,  153,  196, 

219,  222,  303,  309,  311,  312,  313,  323, 

324,  388,  389,  390. 
Farrington  v.  Wilson,  302,  407. 
Faubel  v.  McFarland,  293,  306,  525. 
Faull  v.  Cooke,  528. 
Faxon  v.  Barnard,  215,  218. 
Federal   Oil   Co.  v.  Western   Oil  Co., 

472,  473,  474,  479. 
Fee  v.  Durham,  318,  319,  320. 
Ferguson  v.  Neville,  168. 
Terrell  v.  Hoge,  166. 
Ferris  v.  Baker,  490,  491. 
Ferris  v.  Coover,  302. 
Field  v.  Grey,  106. 

Field  v.  Tanner,  223,  284,  290,  317,  318. 
Figg  v.  Hensley,  287. 
Files,  465. 

Finnerty  v.  Fritz,  488. 
Finney  v.  Berger,  68. 
First  Nat.  Bank  v.  G.  V.  B.  Min.  Co., 

491,  492. 

Fisher  v.  Bountiful  City,  530. 
Fisher  v.   Seymour,  152,  160. 
Fisk  Min.  &  Mill.  Co.  v.  Reed,  535. 
Fissure  Min.   Co.  v.   Old   Susan  Min. 
Co.,  188,  191,  213,  214,  237,  238,  278, 

281,  282. 

Fitzgerald  v.  Clark,  412,  414,  426. 
Fitzpn  trick   v.    Montgomery,    532,   533. 
Flagstaff  Silver  Min.  Co.  v.  Tarbet,  16, 

17,  140,  420,  423,  513. 
Flaherty  v.  Gwinn,  25,  28. 


Flavin  v.  Mattingly,  190. 

Fleetwood  Lode,  69. 

Fleming  v.  Daly,  149,  182. 

Fletcher  v.  Smith,  534. 

Flick  v.  Gold  Hill  &  L.  M.  Min.  Co., 

Florence  Oil  &  Refining  Co.  v.  Orniaii. 

473,  470. 

Florida  Center  &  P.  R.  Co..  120. 
Florida  Town  Imp.  Co.  v.  Bigalsky,  91. 
Floyd  v.  Montgomery,  171,  2 
Foote  v.  National  Min.  Co.,  131,  182. 
Forbes  v.  Graccy,  145,  509. 
Ford  v.  Campbell,  211,  212,  213,  215. 

219,  220,  306,  325. 
Forderer  v.  Schmidt,  297. 
Forsythe  v.  Weingart,  87. 
Forsyth  v.  Wells,  514,  516. 
Fort  Maginnis,  92. 
Foster  v.  Elk  Fork  Oil  &  Gas  Co.,  476, 

479. 

Foster  v.  Lumbermen's  Min.  Co.,  489. 
Four  Hundred  &  Twenty  Min.  Co.  v. 

Bullion  Min.  Co.,  521,  524,  525. 
Fox  v.   Hale  &  Norcross   Silver  Min. 

Co.,  108,  489. 
Fox  v.  Mackay,  384,  396. 
Fox  v.  Myers,  148,  150,  161,  207,  210. 
Francoeur  v.  Newhouse,  152,  393,  398. 
Frank  A.  Maxwell,  171. 
Frank  v.  Bauer,  486. 
Frank  v.  Hicks,  530. 
Franklin  Coal  Co.  v.  McMillan,  515. 
Frasher  v.  O'Connor,  70. 
Frederick  A.  Williams,  355. 
Fredricks    v.    Klauser,   275,    276,    277, 

278,  279. 

Freeman,  In  re,  226. 
Freeman  v.  Hemenway,  490. 
Freezer  v.  Sweeney,  119,  250. 
Fremont  v.  Flower,  392. 
Fremont  v.  U.  S.,  13. 
French  v.  Lancaster,  90. 
Frisholm  v.  Fitzgerald,  222,  223,  338, 

339. 

Fritzler  v.  Robinson,  486. 
Fuhr  v.  Dean,  484. 
Fulkerson  v.  Chrisna  Min.  &  Imp.  Co., 

512. 

Fuller  v.  Harris,  24,  26,  214,  218. 
Fuller  v.  Swan  River  Placer  Min.  Co., 

532. 

Fulrnele  v.  Camp,  53. 
Funk  v.  Haldeman,  474,  485. 


700 


Funk  v.  Sterrett,  192. 
Fu.ru  v.  Dean,  485. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Gabathuler,  John  U.,  94. 

Gadbury  v.  Ohio  &  I.  Consol.  Natural 

&  Illuminating  Gas  Co.,  479,  480. 
Gage  v.  Gage,  495. 
G.  A.  Khern,  361. 
Galbraith  v.  Shasta  Iron  Co.,  220,  394, 

390,  397. 

Gale  v.  Best  63.  396. 
Gale  v.  Petroleum  Co.,  476. 
Gallagher  v.  Gray,  88. 
Gallagher  v.  Hicks,  485,  503. 
Gainer  v.  Glenn.  190,  214. 
Gardner  v.  Bonestell,  51. 
Garfield  Min.  &  Mill.  Co.  v.  Hammer, 

168. 
Garrard  v.  Silver  Peak  Mines,  66,  71, 

120,  393. 

Garside  v.  Norval,  493,  496. 
Gar  the  v.   Hart,  321,  498. 
Garvey  v.  Elder,  284. 
Gary  v.  Todd,  120. 
Gaylord  v.  Place,  396. 
Gear  v.  Ford,  275,  276,  308. 
Gelcich  v.  Moriarty,  207. 
Gemmell  v.  Swain,  156,  159. 
George  F.  Brice,  468. 
Gerbauser,  362. 

Germania  Iron  Co.  v.  U.  S.,  53. 
German  Ins.  Co.  v.  Hayden,  387. 
Gibson,  67. 

Gibson  v.  Anderson,  90,  91. 
Gibson  v.  Chouteau,  14,  223. 
Gill  v.  Fletcher,  502,  525. 
Gill  v.  Weston,  120,  245. 
Gillespie  Tool  Co.  v.  Wilson,  478. 
Gillis  v.   Downey,  287,   326,  367,  372, 

379. 

Gilpin  Co.  Min.  Co.  v.  Drake,  191,  215. 
Gilpin  v.  Sierra  Nevada  Consol.  Min. 

Co.,  405,  414. 

Girard  v.  Carson,  152,  180,  377. 
Gird   v.   California   Oil   Co.,  120,   173, 

208,  245,  270.  279. 
Glacier   Mountain    Silver   Min.   Co.  v. 

Willis,  24,  198,  236,  523,  524. 
Glasgow  v.  Chartiers  Oil  Co.,  472. 
Glasgow  v.  Fairlie,  119. 


Glass  v.  Basin  Mining  &  Concentrat- 
ing Co.,  216. 

Gleeson  v.  Martin  White  Min.  Co.,  19, 
80,  86,  97,  102,  152,  187,  188,  192, 
200.  203,  206.  224. 

Godfrey  v.  Faust,  277,  280,  283. 

Golires  v.  Illinois  Min.  Co.,  199. 

Gold  berg  v.  Bruschi,  151,  291,  307,  308, 
317,  318,  320. 

Golden  and  Cord  Lode  Mining  Claims, 
297,  387. 

Golden  Chief  A  Placer  Claim,  253. 

Golden  Crown  Lode,  354. 

Golden  Empire  Min.  Co.,  346. 

Golden  Fleece  Gold  &  Silver  Min.  Co. 
v.  Cable  Consol.  Gold  &  Silver  Min. 
Co.,  26,  168,  169,  204,  211,  321. 

Golden  Link  Mining,  Leasing  &  Bond- 
ing Co.,  154. 

Golden  v.  Murphy,  405,  520. 

Golden  Reward  Min.  Co.  v.  Buxton 
Min.  Co.,  51,  357,  489,  515. 

Golden    Rule,  etc.,  Co.,  345,  348. 

Golden  Terra  Min.  Co.  v.  Mahler,  153. 

Golden  Terra  Min.  Co.  v.  Smith,  91. 

Gold  Hill  Quartz  Min.  Co.  v.  Ish,  15, 
56,  87. 

Goller  v.  Fett,  494,  498. 

Gonu  v.  Russell,  290,  291. 

Gonzales  v.  French,  52,  85. 

Gordon  v.  Darnell,  488. 

Gore  v.  MeBrayer,  25,  174. 

Gorlinski,  Robert,  49. 

Gorman  Mining  Co.  v.  Alexander,  168. 

Gowdy  v.  Kismet  Gold  Min.  Co.,  153, 
313,  388. 

Graham  v.  Carpenter,  50. 

Graham  v.  Pierce,  495. 

Grand  Canyon  R.  Co.  v.  Cameron,  73, 
97,  368,  370,  372,  387. 

Grand  Cent.  Min.  Co.  v.  Mammoth 
Min.  Co.,  118,  126,  128,  132,  135,  140, 
396,  406,  412,  413. 

Gray  Copper  Lode,  341. 

Gray  v.  Truby,  103,  182. 

Great  Southern  Gas  &  Oil  Co.  v.  Lo- 
gan Natural  Gas  &  Fuel  Co.,  51  r>. 

Great  Western  Oil  Co.  v.  Carpenter, 
473. 

Green  wall  v.  Low  Beechbnrn  Coal  Co., 
508. 

Gregory  v.  Porshbaker,  132,  135,  136, 
137,  160,  165. 


CASES   CITED. 
tTh«  figures  refer  to  pages.] 


701 


Griffin  v.  American  Gold  Min.  Co.,  373. 

Griffin  v.  Fairmont  Coal  Co.,  507. 

Gross  v.  Hughes,  356,  357,  366. 

Grubb  v.  Bayard,  475,  485. 

(Jruwell  v.  Rocca,  168,  374. 

Guffey  Petroleum  Co.  v.  Jeff  Chaison 

T owiisite  Co.,  479,  522. 
Guii'ey   Petroleum   Co.  v.  Oliver,  472, 

479. 

Gumbert  v.   Kilgore,   505. 
Gustin  v.  Embury-Clark  Lumber  Co., 

514. 
G.  V.  B.  Min.  Co.  v.  First  Nat  Bank, 

491,  492. 
Gwillim  v.  Donnellan,   149,   180,   181, 

311,  388,  395. 

H 

Hague  v.  Wheeler,  471. 

Hahn  v.  James,  212,  379. 

Hain  v.  Mattes,  244,  280,  377,  378. 

Hale,  277. 

Hale  &  Norcross  Gold  &  Silver  Min. 

Co.  v.  Storey  County,  498. 
Hall  v.  Abraham,  485,  487,  513. 
Hall  v.  Arnott,  223. 
Hall  v.  Duke  of  Norfolk,  508. 
Hall  v.  Equator    Mining    &    Smelting 

Co.,  401,  437,  453. 
Hall  v.  Hale,  273. 
Hall  v.  Kearny,  278,  280,  281. 
Hall  v.  Vernon,  521. 
Hallack  v.  Traber,  340,  401,  496. 
Hamburg  Min.  Co.  v.  Stephenson,  226, 

361. 
Hamilton  v.  Delhi  Min.  Co.,  143,  145, 

510. 

Hamilton  v.  Huson,  159. 
Hamilton  v.  Southern  Nev.  Gold  &  Sil- 
ver Min.  Co.,  356,  359,  366,  370,  371, 

525. 
Hammer  v.  Garfield  Min.  &  Mill.  Co., 

191,  214,  307,  308. 
Hammond  v.  Rose,  528. 
Hammon  v.  Nix,  510. 
Hancock  T.  Diamond  Plate  Glass  Co., 

472. 

Hand  Y.  Cook,  170,  171,  349. 
Hansen  v.  Fletcher,  190,  191,  198,  199, 

206,  214,  215. 
Hanson  v.  Craig,  165. 
Hard  Cash  &  Other  Mill  Site  Claims, 

227,  228,  229,  238. 


Hardt  v.  Liberty  Hill  Consol.  Mining 

&  Water  Co.,  533. 
Hargrave  v.  Cook,  527. 
Harkrader  v.  Carroll,  304. 
Harkrader  v.  Goldstein,   100. 
Harlan  v.   Lehigh  Coal  &  Navigation 

Co.,  484. 
Harrington  v.  Chambers,  116,  126,  155, 

182. 
Harris  v.  Equator  Min.  &  S.  Co.,  395, 

498,  524. 
Harris  v.  Heirs  of  Ralph  H.  Chapman, 

468. 

Harris  v.  Helena  Gold  Min.  Co.,  377. 
Harris  v.  Kellogg,   168,  285,  307,  308. 
Harris  v.  Lloyd,  493. 
Harris  v.  Ohio  Oil  Co.,  475,  480. 
Harrison  v.  Hoff,  517. 
Hartman  v.  Smith,  99,  227,  228,  231, 

239,  409. 

Hartney  v.  Gosling,  491,  492. 
Hartwell  v.  Camman,  502. 
Harvey  v.  Ryan,  25. 
Haskell  v.  Sntton,  476. 
Haskins  v.  Curran,  490. 
Hastings  &  D.  R.  Co.  v.  Whitney,  53. 
Hauswirth  v.  Butcher,  198. 
Hawkins  v.   Spokane  Hydraulic  Min. 

Co.,  496. 

Hawley  v.  Diller,  52. 
Haws  v.  Victoria  Copper  Min.  Co.,  2o, 

186,  206,  210,  211. 
Hayes  v.  Lavagnino,  126,  130,  148,  149, 

161,  311. 

Haynes  v.  Briscoe,  295,  353. 
Headley  v.  Hoopengarner,  475. 
Healey  v.  Rupp,  160,  179,  356,  368,  369, 

374,  380. 

Hecla  Consol.  Min.  Co.,  180,  230. 
Heil  v.  Martin,  19,  86,  97,  152,  200. 
Heine  v.  Roth,  86.  148. 
Heinze  v.  Boston  &  M.  Consol.  Copper 

&  Silver  Min.  Co.,  406,  412. 
Helbert  v.  Tatem,  378. 
Helena  Gold  &  Iron  Co.  v.  Baggaley, 

213,  219,  221,  323,  324. 
Helena,  etc.,  Co.  v.  Dailey,  370. 
Heller  v.  Dailey,  476. 
Heinan  v.  Griffith,  176. 
Henderson  v.  Ferrell,  479. 
Henderson  v.  Fulton,  118,  119,  132. 
Hendler  v.   Lehigh   Val.   R.   Co.,   113, 

119. 


To: 


CASES   CITED. 
[The  figures  refer  to  pages.] 


llendricks  v.  Spring  Valley  Min.  &  Irr. 

Co.,  508. 
Hendrie  &  Bolthoff  Mfg.  Co.  v.  Parry, 

520. 

Ilonne  v.  South  Penn  Oil  Co.,  473. 
Honshu  w  v.  Clark,  152. 
IltTilic  v.  Young,  516. 
Ilermoeilla  v.  Hubbell,  66,  70. 
Ilerriman  Irr.  Co.  v.  Butterfield  Min. 

&  Mill.  Co.,  523. 
Herron  v.  Eagle  Min.  Co.,  498. 
Hess  v.  Winder,  159,  185. 
Hewitt  v.  Schultz,  53. 
Ileydenfeldt  v.   Daney  Gold  &  Silver 

Min.  Co.,  66,  68. 
Ilibberd  v.  Slack,  65. 
Hickey  v.  Anaconda  Copper  Min.  Co., 

21,  212,  217,  273,  394,  421,  439. 
Hicks  v.  Bell,  9,  11. 
Hidden  Treasure  Consol.  Quartz  Mine, 

279,  344,  351. 

Hidee  Gold  Min.  Co.,  195,  421. 
Higgins  v.  Armstrong,  491. 
Higgins  v.  Hough  ton,  66. 
Higgins  v.  Mining  Co.,  510. 
Highland  Boy  Gold  Min.  Co.  v.  Strick- 

ley,   522,   523. 
Hill  v.  Martin,  80,  102. 
Hill  v.  Pardee,  505. 
Hill  v.  Taylor,  520. 
Hiudson  v.  Markle,  532. 
Hirschler   v.    McKendricks,   277,    282, 

292. 

Hoban  v.  Boyer,  152,  379. 
Hobart  v.  Ford,   522. 
Hobart  v.  Murray,  484. 
Hobbs  v.  Ainador  &  Sacramento  C.  Co., 

533. 

Hodges  v.  Brice,  480. 
Hogan     and     Idaho     Placer     Mining 

Claims,  253. 

Holbrooke  v.  Harrington,  294. 
Holladay  Coal  Co.  v.  Kirker,  465. 
Holland  v.   Mt.  Auburn  Gold  Quartz 

Min.  Co.,  188. 
Holman  v.  Central  Montana  Mines  Co., 

351,  366,  368. 
Holmes  v.  Salmanca  Gold  Min.  &  Mill. 

Co.,  379. 

Holter  v.  Northern  Pac.  R.  Co.,  81. 
Holt  v.  Murphy,  401. 
Homer  Santee,  347. 
Homestake  Min.  Co.,  414. 


Honaker  v.  Martin,  277,  292, 

Hooper,  119. 

Hooper  v.  Ferguson,  84. 

Hope,  Appeal  of,  484. 

Hope  Min.  Co.  v.  Brown,  148,  234,  235, 
237,  371,  412. 

Hopkins  v.  Butte  Copper  Co.,  376,  378. 

Hopkins  v.  Noyes,  156,  498. 

Hopper  v.  Nation,  55. 

Horner  v.  Watson,  506,  534. 

Horsky  v.  Moran,   100. 

Horst  v.  Shea,  398,  524. 

Horswell  v.  Ruiz,  156,  419. 

Hosack  v.  Grill,  484,  485,  503. 

Hosford  v.  Metcalf,  485. 

Hough  v.  Hunt,  276,  277. 

Houssiere-Latreille  Oil  Co.  v.  Jen- 
nings-Heywood  Oil  Syndicate,  473. 

Howard  v.  Perrin,  75. 

Howeth  v.  Sullenger,  186,  198. 

Hoyt  v.  Weyerhaeuser,  52,  54,  80. 

H.  P.  Bennet,  Jr.,  246. 

Hudepohl  v.  Liberty  Hill  Consol.  Min- 
ing &  Water  Co.,  488. 

Huff  v.  McCauley,  485. 

Huggins  v.  Daley,  473,  475,  476,  477, 
479. 

Hughes  v.  Devlin,  395,  521. 

Hulings  v.  Ward  Townsite,  99,  101. 

Hulst  v.  Doerstler,  305,  306,  333. 

Humbird  v.  Avery,  53. 

Hunter,  In  re,  235. 

Hunt  v.  Eureka  Gulch  Min.  Co.,  366. 

Hunt  v.  Patchin,  328,  329,  496. 

Hunt  v.  Steese,  115. 

Huss  v.  Jacobs,  301,  502. 

Hustler  and  New  Year  Lode  Claims, 
195. 

Hutchings  v.  Low,  85. 

Hutchinson  v.  Kline,  496,  503. 

Hyman  v.  Wheeler,  132. 

I 

lams  v.  Carnegie  Natural  Gas  Co.,  476, 

478. 
Iba  v.  Central  Ass'n  of  Wyoming,  379, 

381. 
Idaho  Min.  &  Mill.  Co.  v.  Davis,  143, 

145. 

Idaho  Placer  Mining  Claims,  253. 
Illinois  Silver  Min.  &  Mill.  Co.  v.  Raff, 

404. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


703 


Illinois  &  St.  L.  R.  &  Coal  Co.  v.  Ogle, 

515. 
Indiana    Natural    Gas    &   Oil    Co.    v. 

Pierce,  476. 
Indianapolis  Natural  Gas  Co.  v.  Kib- 

bey,  477. 

Indian   Reservation,    91. 
Ingemarson  v.  Coffey,  184. 
Ingle  v.  Bottoms,  476. 
Integrity  Min.  &  Mill.  Co.  v.  Moon,  518. 
Interstate  Coal   &  Iron  Co.  v.   Clint- 
wood  Coal  &  Timber  Co.,  502,  503. 
lola  Lode  Case,  384. 
Iron  Silver  v.  Louisville,  139. 
Iron  Silver  Min.  Co.  v.  Campbell,  262, 

369,  373,  399,  414. 
Iron  Silver  Min.  Co.  v,  Cheesman,  117, 

126,  127,  128,  134,  135,  413,  440. 
Iron  Silver  Min.  Co.  v.  Elgin  Mining 

&   Smelting  Co.,  405,  415,  419,  422, 

425. 
Iron  Silver  Min.  Co.  v.  Mike  &  Starr 

Gold  &  Silver  Min.  Co.,  128,  261,  263, 

267,  414. 
Iron  Silver  Min.  Co.  v.  Murpby,  140, 

148,  412. 

Iron  Silver  Min.  Co.  v.  Reynolds,  267. 
Irwin  v.  Strait,  528. 
Isabella  Gold  Min.  Co.  v.  Glenn,  486. 
Isom  v.  Rex  Crude  Oil  Co.,  120. 
Ivanhoe  Min.  Co.  v.  Keystone  Consol. 

Min.  Co.,  15,  66,  67,  70. 
Ivy  Coal  &  Coke  Co.  v.  Alabama  Coal 

&  Coke  Co.,  514. 

J 

Jack  Pot  Lode  Min.  Claim,  420. 

Jackson  v.  Dines,  190,  215. 

Jackson  v.  Feather   River  &  Gibson- 

ville  Water  Co.,  497,  498. 
Jackson  v.  McFall,  378,  379. 
Jackson  v.  O'Hara,  473. 
Jackson  v.  Prior  Hill  Min.  Co.,  310. 
Jackson  v.  Roby,   270,    277,    279,    280, 

282. 
Jackson  v.  White  Cloud  Gold  Min.  & 

Mill.  Co.,  172. 
James     Carretto     and     Other     Lode 

Claims,  278,  351. 
James  D.  Negus,  465. 
James  T.  Germania  Iron  Co.,  52,  54, 

392. 


Jamestown  v.  Northern  Pac.   R.  Co., 

75. 
Jamestown  &  N.  R.  Co.  v.  Jones,  71. 

74. 

James  W.  Logan,  148. 
Jantzon   v.   Arizona   Copper  Co.,   168, 

220. 

J.  B.  Chaffee,  In  re,  235. 
Jefferson  Iron  Works  v.  Gill  Bros.,  504. 
Jefferson  Min.  Co.  v.  Anchoria-Leland 

Min.  &  Mill.  Co.,  373,  404,  436,  439, 

441,  443,  456. 
Jeffords  v.  Hine,  51. 
Jennings  v.  Rickard,  493. 
Jennison  v.  Kirk,  6,  15,  527. 
Jessie  E.  Oviatt,  463. 
J.   M.   Guffey    Petroleum   Co.   v.   Jeff 

Chaison  Townsite  Co.,  479,  522. 
J.  M.  Guffey  Petroleum  Co.  v.  Oliver, 

472,  479. 

Johanson  v.  Washington,  49,  65,  69. 
Johanson  v.  White,  157. 
John  Hunter,  In  re,  235. 
Johnson  v.  Drew,  51. 
Johnson  v.  Hurst,  55. 
Johnson  v.  Johnson,  392. 
Johnson  v.  Leonhard,  463,  466. 
Johnson  v.  McLaughlin,    27,    28,    218, 

274. 

Johnson  v.  McMillan,  467. 
Johnson  v.  Parks,   206,   221. 
Johnson  v.  Young,  222,  223,  307,  340. 
Johnston  v.  Crimpton,  119. 
Johnston  v.  Morris,  56,  68, 
John  U.  Gabathuler,  94. 
Jones  v.  Adams,  528. 
Jones  v.  American  Ass'n,  502. 
Jones  v.  Clark,  492,  493. 
Jones  v.  Forest  Oil  Co.,  471. 
Jones  v.  Hoover,  53. 
Jones  v.  Jackson,  238,  239,   533. 
Jones  v.  Pacific  Dredging  Co.,  377. 
Jones    v.    Prospect    Mountain   Tunnel 

Co.,  137,  405. 

Jones  v.  Robertson,  532,  535. 
Jones  v.  Wagner,  505. 
Jones  Lode,  195,  226,  365. 
Jordan  v.  Duke,  223,  320,  323. 
Jordan  v.  Schuerman,  223,  337. 
J.  S.  Wallace,  368. 
Jupiter  Min.  Co.  v.  Bodie  Consol.  Min. 

Co.,   23,    25.  28,    126,    132,   148,    160, 

188,  191,  192,  198,  205,  211,  214,  279, 

440. 


704 


CASES   CITED.     - 
[The  figures  refer  to  pages.] 


Justice  Min.  Co.  v.  Barclay,  278,  281, 

288,  289. 
Justice  Min.  Co.  v.  Lee,  169. 

K 

Kahn  v.  Central  Smelting  Co.,  491,  492, 

495. 

Kahn  v.  Old  Tel.  Min.  Co.,  401,  493. 
Kannaugh  v.  Quartette  Min.  Co.,  356, 

380. 

Katherine  Davis,  64. 
Katz  v.  Walkinshaw,  472. 
Keeler  v.  Trueman,  377,  395,  498. 
Kelley  v.  Ohio  Oil  Co.,  471,  474. 
Kelly  v.  Keys,  476. 
Kendall  v.  San  Juan  Min.  Co.,  90,  91. 
Kendall  v.  San  Juan  Silver  Min.  Co., 

389. 

Kennedy  v.  Dickie,  51. 
Kennedy  Mining  &  Milling  Co.  v.  Ar- 
gonaut Mining  Co.,  417,  458. 
Keppler  v.  Becker,  378. 
Kern  Oil  Co.  v.  Clarke,  69,  93. 
Kern  Oil  Co.  v.  Clotfeter,  246. 
Kern  Oil  Co.   v.    Crawford,    251,    252, 

255,  256. 
Keystone  Lode  &  Mill  Site  v.  State  of 

Nevada,  66. 
Khern,  361. 

Kiinberly  v.  Arms,  490,  492,  493. 
King   v.   Amy   &   Silversmith   Consol. 

Min.  Co.,  420,  423. 
King  v.  Bradford,  119. 
King  v.  Edwards,  7,  28. 
King  v.  McAndrews,  52,  90. 
King  v.  Randlett,  498. 
Kingsley  v.  Hillside  Coal  &  Iron  Co., 

484,  503. 
Kinney  v.  Consolidated  Va.  Min.  Co., 

497. 
Kinney  v.  Fleming,  174,  191,  205,  208, 

305,  324. 

Kinney  v.  Lundy,  222,  316. 
Kinney  v.  Van  Bokern,  368. 
Kinsley  v.  New  Vulture  Min.  Co.,  277. 
Kirby  v.  Potter,  87. 
Kirchner  v.  Smith,  491. 
Kirk  v.  Clark,  244,  281. 
Kirk  v.  Meldrum,  151,  260,  381. 
Kirwan  v.  Murphy,  55,  56. 
Kistler  v.  Thompson,  505. 
Kitchen  v.  Smith,  476. 


Kitcherside  v.  Myers,  53. 
Kleppner  v.   Leuion,  471. 
Klopenstine  v.  Hays,  278,  288,  289,  292. 
Knickerbocker  v.  Halla,  297. 
Knight  v.  United  Land  Ass'n,  60. 
Knight  v.  U.  S.,  48. 
Knotts  v.  McGregor,  478. 
K.  P.  Min.  Co.  v.  Jacobson,  487. 
Krall  v.  United  States,  530. 
Kramer  v.  Settle,  174,  280. 


Lacey  v.  Woodward,  159,  288.  290,  303, 

318. 

Lackawanna  Placer  Claim,  354. 
Laesch  v.  Morton,  494. 
La  Grande  Inv.  Co.  v.  Shaw,  143,  160. 
Lakin  v.  Dolly,  393. 
Lakin  v.  Roberts,  393. 
Lalande  v.  Townsite  of   Saltese,   101, 

102,  370. 

Lamb  v.  Northern  Pac.  R.  Co.,  82. 
Landregan  v.  Peppin,  376. 
Lange  v.  Robinson,  151,  375. 
Langmede  v.  Weaver,  475. 
Lanyon  Zinc  Co.  v.  Freeman,  120,  470. 
Largey  v.  Bartlett,  487. 
Larimer  County  Ditch  Co.  v.  Zimmer- 
man, 535. 

Larkin  v.  Upton,  140,  148,  234,  412. 
Larned  v.  Jenkins,  17,  100,  101,  414. 
Last  Chance  Min.  Co.  v.  Bunker  Hill 

&    S.    Mining   &   Concentrating   Co., 

220,  324,  396,  423,  437,  525. 
Last  Chance  Min.   Co.  v.  Tyler   Min. 

Co.,  204,  384,  419,  423,  425,  426. 
Latham,  353. 

Laughing  Water  Placer,  253,  287. 
Lauman  v.  Hoofer,  152,  310,  385. 
Lavagnino  v.  Uhlig,  151,  152,  153,  170, 

196,  219,  222,  289,  290,  311.  312,  313, 

321,  322,  323,  324,  349,  379,  388,  389, 

390,  434,  436,  524. 

Lawrence  v.  Robinson,  482,  490,  492. 
Lawson  v.  Kirchner,  474,  476. 
Lawson  v.  United  States  Min.  Co.,  147, 

371,  372,  396,  397,  406,  421,  437. 
Lazarus'  Estate,  In  re,  484. 
Leach  v.  Potter,  84. 
Leadville  Co.  v.  Fitzgerald,   133,   134, 

135,  405,  412,  413,  414. 


CASES   CITED. 
[The  figures  refer  to  pages.J 


703 


Lebanon  Min.  Co.  v.  Consolidated  Re- 
publican Min.  Co.,  501. 
Lebanon  Min.  Co.  v.  Rogers,  18. 
Ledbetter  v.  Borland,  393. 
Lfdoux  v.  Forester,  161,  186,  198. 
Lee  v.  Johnson,  51,  52. 
Lee  v.  Stahl,  457. 
Lee  Doon  v.  Tesh,  377. 
Leet  v.  John  Dare  Silver  Min.  Co.,  27, 

143. 

.Le  Fevre  v.  Amonson,  374,  387. 
Leffingwell,  171. 
Levitt  v.  Stewart,  198. 
Lehigh  Zinc  &  Iron  Co.  v.  New  Jersey 

Zinc  &  Iron  Co.,  517. 
Lellie  Lode  Min.  Claim,  200,  410,  458. 
Le  Marchel  v.  Teagarden,  54,  392. 
Le  Neve  Mill  Site,  229,  230. 
Lenfers  v.  Henke,  521. 
Leimig,  227,  230,  238. 
Levy  v.  Gause,  62. 
Liddia  Lode  Mining  Claim,  359. 
Lily  Min.  Co.  v.  Kellogg,  357,  37.3. 
Lincoln-Lucky  &  Lee  Min.  Co.  v.  Hen- 
dry,  512. 

Lincoln  v.  Rodgers,  238. 
Little  Dorrit  Gold  Min.  Co.  v.  Arapa- 

hoe  Gold  Min.  Co.,  278,  288,  300,  307, 

309. 
Little  Gunnell  Co.  v.  Kimber,  149,  277, 

290,  303,  314,  328,  342. 
Little  Josephine  Min.  Co.  v.  Fullerton, 

457. 
Little  Pittsburg    Consol.    Min.    Co.    v. 

Little  Chief  Consol.  Min.  Co.,   515. 
Little  Pittsburgh  Consolidated  Min.  Co. 

v.  Ainie  Min.  Co.,  180,  181. 
Littler  v.  Robinson,  510. 
Livingston  v.  Moingona  Coal  Co.,  505. 
Lizzie  Elison,  350. 
Lloyd  v.  Catlin  Coal  Co.,  505,  518. 
Lockhart  v.  Farrell,  152,  153,  381,  388, 

389. 
Lockhart  v.  Johnson,  64,  218,  324,  325, 

332,  335. 
Lockhart  v.  Leeds,  219,  333,  334,  400, 

517,  518. 
Lockhart  v.  Rollins,  276,  282,  309,  321, 

334,  497. 
Lockhart  v.  Wills,    64,    184,   220,   325, 

304,  309,  333,  335. 
Lockwood  v.  Lunsford,  485. 
COST.  MIN.  L.-45 


Locust  Mountain  Coal  &  Iron  Co.   v. 

Gorrell,  534. 
Loeser  v.  Gardiner,  188,  255,  256,  303, 

308. 

Logan,  148. 
Lr-nu  Natural  Gas  &  Fuel  Co.  v.  Great 

Southern  Gas1  &  Oil  Co.,  479. 
Lohiuann  v.  Helmer,  170,  395,  498. 
Londonderry  Min.  Co.  v.  United  Gold 

Mines  Co.,  191,  214. 
Lone  Acre  Oil  Co.  v.  Swayne,  4!)5. 
Lone  Jack  Min.  Co.  v.  Megginson,  168. 
Lone  Tree  Ditch  Co.  v.  Cyclone  Ditch 

Co.,  528. 
Long,  In  re,  226. 
Long  v.  Isaksen,  84,  119. 
Looinis  v.  Bedel,  499. 
Lord  v.  Carbon  Iron  Mfg.  Co.,  507. 
Lord's  Ex'rs  v.  Carbon  Iron  Mfg.  Co., 

534. 

Lorenz  v.  Waldron,  159. 
Louisville  Gas  Co.  v.  Kentucky  Heat- 
ing Co.,  471. 
Louisville  Gold  Min.   Co.   v.    Hayman 

Mining  &  Tunnel  Co.,  351,  352. 
Lovely  Placer  Claim,  277. 
Lowry  v.   Silver   City    Gold  &   Silver 

Min.  Co.,  334. 

Lowther  Oil  Co.  v.  Guffey,  475. 
Lowther   Oil   Co.   v.  Miller-Sibley   Oil 

Co.,  473,  476,  477,  478,  479,  480. 
Lozar  v.  Neill,  381. 
Lucky   Find   Placer   Claim,   287,   326, 

391. 

Lulay  v.  Barnes,  525. 
Luthye  v.  Northern  Pac.  R.  Co.,  82. 
Lux  v.  Haggin,  527. 
Lyman  v.  Schwartz,  491,  492. 
Lynch  v.  Burford,  478. 
Lynch  v.  U.  S.,  81,  113. 

M 

Mabel  Lode,  226. 

Mable   Min.    Co.   v.    Pearson   Coal    & 

Iron  Co.,  518. 
McBride  v.  Whitaker,  56. 
McBurney  v.  Berry,  212. 
McCann   v.    McMillan,    191,    211,   213, 

305,  300. 
MrOirt^v  r.  Speed,  149,  266,  328,  331, 

332,  333,  377. 


"OG 


CASES    CITED. 
[The  figures  refer  to  pages.] 


McCauley  v.  McKeig,  532. 
McCloud  v.  Central  Pac.  R.  Co.,  80. 
McCombs  v.  Stephenson,  118. 
McConaghy   v.    Doyle,    151,    261,   262, 

263. 

McConnell  v.  Blood,  342. 
McConnell  v.  Pierce,  502,  503. 
McCord  v.   Oakland   Quicksilver  Min. 

Co.,  493,  494. 

McCormick  v.  Baldwin,  278,  292. 
McCormick  v.  Parriott,  282,  520. 
McCormick  v.  Sutton,  100. 
McCormick  v.  Varnes,  414,  423. 
McCowan  v.  Maclay,  217,  524. 
McCreery  v.  Haskell,  70. 
McCullagh  v.  Rains,  484. 
McCulloch   v.   Murphy,   174,   271,   284, 

285,  307. 
McDerrnott    Min.    Co.    v.    McDermott, 

335,  502. 
McDonald  v.  Montana  Wood  Co.,  255, 

260,  270. 
McElligott  v.  Krogh,  195,  196,  200,  204, 

419,  448. 
McEvoy  v.  Hyman,  205,  223,  336,  337, 

338,  384. 
McFadden  v.   Mountain  View  Min.  & 

Mill.  Co.,  53,  90,  91,  368. 
McFeters    v.    Pierson,    142,    143,    168, 

395. 

McGarrity   v.   Byington,   28,  275,   280. 
McGinnis  v.  Egbert  155,  180,  181,  182, 

223,  273,  284,  285,  325,  337,  382. 
McGlenn  v.  Wienbroeer,  119. 
McGonigle  v.  Atchison,  516. 
McGowan   v.   Alps   Consol.    Min.    Co., 

391. 

McGowan  v.  Bailey,  495. 
McGowan  v.  Maclay,  524. 
McGrath  v.  Bassick,  282. 
McGuire  v.  Brown,  528. 
Mclntosh  v.  Price,  199,  215,  258,  259. 
Mack  v.  Mack,  482. 
Mackall  v.  Goodsell,  84. 
Mackay  v.  Fox,  369,  377,  384,  385. 
McKay   v.    McDougall,    273,    290,   291, 

301,  303,  318. 

McKay  v.  Neussler,  282,  294, 
McKenzie  v.  Coslett,  483. 
McKeon  v.  Bisbee,  395. 
McKiernan  v.  Hesse,  342. 
McKinloy   Creek    Min.    Co.   v.   Alaska 

Tinted  Min.  Co.,  168,  188,  191,  236, 

252,  255,  256,  257. 


McKinley  v.  Wheeler,  171,  172,  173. 
McKiustry  v.  Clark,  149,  180. 
McKnight  v.    Manufacturers'   Natural 

Gas  Co.,  480. 

McLauglilin  v.  Thompson,  185,  483. 
McLucas  v.  St.  Joseph  &  G.  I.  R.  Co., 

74. 
McMahon  v.   Meehan   &  Larson,   174, 

491,  493. 
McMaster,    368. 
McMillen  v.  Ferrum  Min.  Co.,  149,  154, 

180,  181,  213,  312,  520. 
McNeil  v.  Pace,  320. 
McPherson  v.  Julius,  151,  189,  198. 
McQuiddy  v.  California,  57,  119,  120, 

246. 

McShane  v.  Kenkle,  148,  155. 
McWilliams  v.  Winslow,  151,  309,  3S1. 
Madar  v.  Norman,  491,  493. 
Madden   v.    Lehigh    Valley   Coal    Co., 

506. 

Madison  Placer  Claim,  376. 
Maginnis,  Fort,  92. 
Magruder  v.  Oregon  &  C.  R.  Co.,  56, 

57. 

Mahoganey  No.  2  Lode  Claim,  66,  69. 
Majors  v.  Rinda,  84. 
Malaby  v.  Rice,  371,  372,  400,  401. 
Malcomson  v.  Wappoo  Mills,  484. 
Malecek  v.  Tinsley,  156,  177,  188,  207. 
Mallett  v.   Uncle  Sam   Gold  &  Silver 

Min.  Co.,  28,  306,  307. 
Malone  v.  Jackson,  156,  273,  317,  322, 

323. 

Maloney  v.  King,  406,  515. 
Manhattan  Oil  Co.  v.  Carrell,  473. 
Mauley  v.  Boone,  521. 
Maun  v.  Budlong,  275. 
Manners  Const.  Co.  v.  Rees,  85. 
Manning  v.  Frazier,  485,  502. 
Manning  v.  San  Jaciuto   Tin  Co.,  64. 
Manning  v.  Strehlow,  382. 
Mansfield  Coal  &  Coke  Co.  v.  Mellon, 

504. 

Mantle  v.  Noyes,  373. 
Manuel  v.  Wulff,  168,  395. 
Manufacturers'  Gas  &  Oil  Co.  v.  In- 
diana  Natural  Gas  &  Oil  Co.,  471, 

474. 

Manville  v.  Parks,  490,  492. 
Marburg  Lode  Mining  Claim,  2S7,  326. 
Mares  v.  Dillon.  21.  212.  375,  376. 
Marks  v.  Gates,  482.  490,  491. 
Marquez  v.  Frisbie,  51,  53. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Marshall   v.   Harney    Peak   Tin   Min., 
Mill.  &  Mfg.  Co.,  186,  303. 

Marshall    Silver  Min.   Co.  v.   Kirtley, 
377. 

3h  v.  Ilolley,  4!):;. 

Mars  v.  Oro  Fino  Min.  Co.,  377. 

Murtel  v.  Jennings-Heywood  Oil  Syn- 
dicate, 473,  495. 

Martin  v.  Browner,  98. 

Marvel  v.  Merritt,  144. 

Marvin  v.  Brewster  Iron  Min.  Co.,  502, 
503,  507. 

Mary  Darling  Placer  Claim,  361. 

Mary  McM.  Latham,  353. 

Mathews  v.  People's  Natural  Gas  Co., 
472,   478. 

Mathews    Slate   Co.    v.    New    Empire 
Slate  Co.,  487. 

Matko  v.  Daley,  316. 

Matlock  v.  Stone,  168,  377. 

Mattingly  v.  Lewisohn,  282,  308,  378. 

Matulys   v.    Philadelphia    &    Reading 
Coal  &  Iron  Co.,  505,  508. 

Maxwell,  171. 

Mayer  v.  Carothers,  525. 

Maye  v.  Yappen,  514. 

Mayflower  Gold  Min.  Co.,  344, 

Meadows,  Paris,  49. 

Meagher  v.  Reed.  491,  492. 

Medley  v.  Robertson,  68. 

Meehan  v.  Nelson,  489. 

Melder  v.  White,  74. 

Melton  v.  Lambard,  494,  498. 

Merced  Min.  Co.  v.  Fremont,  10. 

Merced  Oil  Min.  Co.  v.  Patterson,  160, 
299. 

Merk  v.  Bowery  Min.  Co.,  487. 

Merrill  v.  Dixon,  66. 

Merritt  v.  Judd,  341. 

Mery  v.  Brodt,  88. 

Metcalf  v.  Prescott,  192,  215. 

Meydenbauer  v.  Stevens,  31,  135,  148, 
156,  188,  203,  205,  206,  220,  397. 

Meyer-Clarke-Rowe  Mines  Co.  v.  Stein- 
field,  205. 

Meylette  v.  Brennan,  481,  482. 

Michael  v.    Mills,   147,    151,   152,   180, 
264. 

Mickle  v.  Douglas,  506. 

Mi^eon  v.  Montana  Cent.  R.  Co.,  126, 
128,  150.  261,  303. 

Milford  Metal  Minos  Inv.  Co.,  352. 

Miller  v.  Butterfield,  482. 


Miller  v.  Chris  

1G4,  166,  211,  254,  499. 

Miller  v.  Girard,  180,  311. 

Miller  v.  Hamley,  181,  S02,  306. 

Miller  v.  Taylor,  184.  314. 

Miller  Placer  Claim.  2-13. 

Milligan  v.  Savery,  37,"). 

Mills  v.  Fletcher,  274?  284. 

Mills  v.  Ilartz,  473,  479. 

Mill  Site,  351,  360. 

Milwaukee  Gold  Extraction  Co.  v.  Gor- 
don, 223,  337,  381. 

Minah  Consol.  Min.  Co.  v.  Briscoe, 
334. 

Mineral  Farm  Min.  Co.  v.  Barrick,  51, 
359,  390. 

Minneapolis,  St.  P.  &  S.  S.  M.  R.  Co. 
v.  Doughty,  71. 

Minnesota  &  M.  Land  &  Improvement 
Co.  v.  Brasier,  524. 

Miser  v.  O'Shea,  238,  239,  533. 

Missouri,  K.  &  T.  R.  Co.  v.  Roberts, 
74,  90. 

Missouri,  K.  &  T.  R.  Co.  v.  Watson,  74. 

Mitchell  v.  Cline,  173,  521. 

Mitchell  v.  Hagood,  168. 

Mitchell  v.  Hutchinson,  252. 

Moffat  v.  Blue  River  Gold  Excavating 
Co.,  303,  307,  317,  321,  381. 

Molina  v.  Luce,  152. 

Monk,  In  re,  23. 

Monster  Lode  Mining  Claim,  344. 

Montague  v.  Labay,  389. 

Montana  Cent.  R.  Co.,  74. 

Montana  Cent.  R.  Co.  v.  Migeon,  261, 
262,  263. 

Montana  Co.  v.  Clark,  405,  419. 

Montana  Co.  v.  Gehring,  531. 

Montana  Co.  v.  St.  Louis  Min.  &  Mill. 
Co.,  519,  520. 

Montana  Copper  Co.  v.  Dahl,  261. 

Montana  Min.  Co.  v.  St.  Louis  Mining 
&  Milling  Co.,  384,  407,  434,  444, 
458,  500,  513. 

Montana  Ore  Purchasing  Co.  v.  Bos- 
ton &  M.  Consol.  Copper  &  Silver 
Min.  Co.,  97^  102,  411,  412,  452,  458. 

Mont  Blanc  Consol.  Gravel  Min.  Co.  v. 
Debour,  377,  380. 

Montrozona  Gold  Min.  Co.  v.  Thatch- 
er, 488,  514. 

Moore  v.  Brown,  43. 

Moore  v.  Griffin,  502,  503. 


708 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Moore  v.  Hamerstag,  174,  498. 
Moore  v.  Indian  Camp  Coal  Co.,  503. 
Moore  v.  Bobbins,  51,  398. 
Moore  v.  Srnaw,  9,  10,  13,  61,  392. 
Moore    v.    Steelsmith,    148,    174,    205, 

255,  395. 
Moore   Consol.    Min.   Co.   v.    Nesmith, 

350. 
Moorliead  v.   Erie   Min.   &   Mill.   Co., 

153,  222,  290,  311,  312. 
Morenhaut  v.  Wilson,  304,  308,  494. 
Morgan  v.  Tillottson,  270. 
Morgan  v.  Varick,  517. 
Moritz  v.  Lavelle,  481. 
Morning    Star    Lode    Mining    Claims, 

358. 

Morrill  v.  Northern  Pac.  R.  Co.,  119. 
Morrison,  465.  466. 
Morrison  v.  Regan,  191,  213,  214,  223, 

338. 

Morrow  v.  Matthew,  483. 
Morton  v.   Solambo  Copper  Min.  Co., 

5,  210. 

Moss  v.  Dowman,  51. 
Mountain    View   Min.    &   Mill.    Co.   v. 

McFadden,   375. 
Mt.  Diablo   Mill.   &  Min.   Co.   v.   Cal- 

lison,  143,  187,  275,  276,  280,  281,  440. 
Mt.  Rosa  Mining,  Milling  &  Land  Co. 

v.  Palmer,  265,  267,  268,  512. 
Mower  v.  Fletcher,  70. 
Moxon  v.  Wilkinson,  259. 
Moyer  v.  Preston,  529. 
Moyle  v.  Bullene,  99,  152,  180,  222,  339. 
Muhlenberg  v.  Henning,  486. 
Muldoon  v.  Brown,  216. 
Muldrick  v.  Brown,  148,  182,  518. 
Mullan  v.  U.  S.,  67,  81. 
Mullins  v.  Butte  Hardware  Co.,  521. 
Murdock-West  Co.  v.  Logan,  476. 
Murley   v.   Ennis,   174,   183,   302,   311, 

481,  482. 

Murray  v.  Allred,  120,  470. 
Murray  v.  Barnhart,  473. 
Murray  v.  Haverty,  493. 
Murray  v.   Montana  Lumber  &  Mfg. 

Co.,  369,  400. 

Murray  v.  Polglase,  286,  367,  377,  380. 
Murray  v.  Tingley,  529. 
Murray  Hill  Min.  &  Mill.  Co.  v.  Ha- 

venor,  285,  380. 
Muskett  v.  Hill,  485. 
Mutchmor  v.  McCarty,  215,  220,  261, 

263,  268. 


Mutual  Mining  &  Milling  Co.  v.  Cur- 
rency Co.,  153,  313,  366,  388. 
Myers  v.  Spooner,  218. 

N 

Nadger  Gold  Min.  &  Mill.  Co.  v.  Stock- 
ton Gold  &  Copper  Min.  Co.,  295. 

Narver  v.  Eastman,  87. 

Nash  v.  McNamara,  324. 

National  Light  &  Thorium  Co.  v.  Alex- 
ander, 484,  486. 

National  Mining  &  Exploration  Co., 
226. 

National  Oil  &  Pipe  Line  Co.  v.  Teel, 
479. 

National  Transit  Co.  v.  Weston,  517. 

Navajo  Indian  Reservation,  90. 

Negaunee  Iron  Co.  v.  Iron  Cliffs  Co., 
502,  518. 

Negus,  465. 

Neilson  v.  Champagne  Min.  &  Mill.  Co., 
390,  400. 

Neilson  v.  Champaigne  Min.  &  Mill. 
Co.,  286,  327. 

Nelson  v.  Northern  Pac.  R.  Co.,  75. 

Nelson  v.  O'Neal,  533. 

Nesbitt  v.  De  Lamar's  Nevada  Gold 
Min.  Co.,  283,  373. 

Neuebaumer  v.  Woodman,  185. 

Nevada  Ditch  Co.  v.  Bennett,  529. 

Nevada  Lode,  386. 

Nevada  Sierra  Oil  Co.  v.  Home  Oil 
Co.,  149,  157,  160,  165,  311,  520. 

Nevada  Sierra  Oil  Co.  v.  Miller,  162. 

New  American  Oil  Co.  v.  Troyer,  473. 

Newbill  v.  Thurston,  192,  207. 

New  Dunderberg  Min.  Co.  v.  Old,  17, 
52,  416,  423. 

New  England  &  Coalinga  Oil  Co.  v. 
Congdon,  156,  162,  165,  276. 

Newhall  v.  Sanger,  63. 

Newman  v.  Newton,  379. 

New  Sharlston  Collieries  Co.  v.  Earl 
of  Westmoreland,  506. 

Ney  Year  Lode  Claims,  195. 

New  York  Hill  Co.  v.  Rocky  Bar  Co., 
371,  372,  386. 

New  York  &  N.  E.  R.  Co.  v.  Com'rs, 
507. 

Nielson  v.  Champagne  Min.  &  Mill.  Co., 
344,  348. 

Niles  v.  Kennan,  304. 

Nisbet  v.  Nash,  492. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


709 


Noble  v.  Union  River  Logging  R.  Co., 

53. 

Nolan  v.  Lovelock,  492. 
Nome-Sinook  Co.  v.   Simpson,  370. 
Nome   &    Siuook   Co.    v.    Townsite   of 

Nome,  99. 

Nooiian  v.  Caledonia  Gold  Min.  Co.,  91. 
Noonan  v.  Pardee,  504,  505,  508. 
Norfleet  v.  Russell,  499. 
Norman    v.    Phoenix    Zinc    Mining    & 

Smelting  Co.,  36. 
North    American    Exploration    Co.    v. 

Adams,  230. 
North  Bloomfield  Gravel  Min.  Co.  v. 

United  States,  534. 
North  Clyde  Quartz  Mining  Claim  and 

Mill  Site,  351. 
Northern  Lumber  Co.  v.  O'Brien,  53, 

81. 

Northern  Pac.  R.  Co.,  353. 
Northern  Pac.  R.  Co.  v.  Cannon,  80. 
Northern  Pac.  R.  Co.  v.  Idaho,  81. 
Northern  Pac.  R.  Co.  v.  McCormick, 

73. 
Northern  Pac.  R.  Co.  v.  Murray,  73, 

75. 

Northern  Pac.  R.  Co.  v.  Sanders,  76. 
Northern  Pac.  R.  Co.  v.  Smith,  74,  98. 
Northern  Pac.  *R.  Co.  v.  Soderberg,  53, 

79,  118,  121. 

Northern  Pac.  R.  Co.  v.  Townsend,  74. 
Northern  Pac.  R.  Co.  v.  Wass,  81. 
Northmore  v.  Simmons,  27,  273,  274. 
North  Noonday  Min.  Co.  v.  Orient  Min. 

Co.,  25,  117,  132,  155,  160,  169,  172, 

187,  188,  191,  192,  211,  214,  440. 
North  Star  Lode,  308,  369,  373. 
Northwestern  Ohio  Natural  Gas  Co.  v. 

Tiffin,  474. 
Noyes  v.  Black,  156. 
Noyes  v.  Clifford,  151,  261,  262,  263,  267, 

268,  284,  369,  372,  399. 
Noyes  v.  Mantle,  262,  268,  369,  372. 
No.  5  Min.  Co.  v.  Bruce,  488. 


Oberto  v.  Smith,  299,  304. 

O'Brien  v.  Boland,  488. 

O'Connell  v.  Pinnacle  Gold  Mines  Co., 

395. 

O'Donnell  v.  Glenn,  155,  181,  182,  216. 
Ohio  Oil  Co,  v.  State  of  Indiana,  471, 

474. 


O'Keefe  v.  Cannon,  262. 

Olippey  Min.  Co.  v.  Eli  Mining  &  Land 

Co.,  157. 
Olive  Land  &  Development  Co.  v.  Ohn- 

steatl,  16.">. 
Omaha  &  Grant   Smelting  &  Refining 

Co.  v.  Tabor,  514,  515. 
Omar  v.  Soper,  156,  177,  210,  219,  L.'_!i>, 

306,  324,  325. 

O'Neill  v.  Risiuger,  472,  473. 
Oolagah  Coal  Co.  v.  McCaleb,  518. 
Ophir    Silver    Min.    Co.    v.    Superior 

Court,  405,  406,  517. 
Opie  v.  Auburn  Milling  Co.,  386. 
Orchard  v.  Alexander,  359. 
Oreamuno  v.  Uncle  Sam  Gold  &  Silver 

Min.   Co.,  29,  303,  307. 
Oregon  King  Min.  Co.  v.  Brown,  187, 

188,  209. 

Oregon  Short  Line  R.  Co.  v.  Fisher,  73. 
Oregon  Short  Line  R.  Co.  v.  Quigley, 

74,  85. 
Oregon  Short  Line  R.  Co.  v.  Stalker, 

71,  74. 

Oregon  &  C.  R.  Co.,  80. 
Oregon  &  C.  R.  Co.  v.  U.  S.,  76,  80,  81. 
Original  Company  of  Williams  &  Kel- 

linger  v.  Winthrop  Min.  Co.,  23,  27, 

273,  274. 
Ormund  v.  Granite  Mt  Min.  Co.,  149, 

519. 

Orr  v.  Haskell,  26. 
Osborn  v.  Froyseth,  80. 
Oscamp  v.  Crystal  River  Min.  Co.,  222, 

290,  305,  390,  395. 
Osgood  v.   El  Dorado  Water  &  Deep 

Gravel  Min.  Co.,  528. 
Otaheite  Gold  &  Silver  Min.  &  Mill. 

Co.  v.  Dean,  531,  533. 
Oury  v.  Goodwin,  523. 
Overman  Silver  Min.  Co.  v.  Corcoran, 

147,  523. 
Oviatt,  463. 
Owers  v.  Killoran,  369,  373. 


Pacific  Coast  Marble  Co.  v.  Northern 
Pac.  R.  Co.,  118,  119,  120. 

Pacific  Coast  Min.  &  Mill.  Co.  v.  Spar- 
go,  152. 

Pacific  Live  Stock  Co.  v.  Isaacs,  517. 

Packer  v.  Heaton.  276,  280. 

Page  v.  Fowler,  517. 


710 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Page  v.  Summers,  483. 

Palmer  v.  Truby,  478. 

Paragon   Min.   &   Development  Co.   v. 

Stevens  County  Exploration  Co.,  316, 

324. 

Pardee  v.  Murray,  454,  513,  525. 
Paris  Gibson,  67. 
Paris  Meadows,  49.- 
Parish   Fork   Oil   Co.   v.   Bridgewater 

Gas  Co.,  473,  476,  479. 
Parker  v.  Furlong,  518. 
Parker  v.  Parker,  520. 
Parley's  Park  Silver  Min.  Co.  v.  Kerr, 

26,  378. 
Parrott  Silver  &  Copper  Co.  v.  Heinze, 

406,  420,  423,  426. 
Paterson  v.  Ogden,  450. 
Patten  v.  Conglomerate  Min.  Co.,  415. 
Patterson  v.  Hewitt,  401,  518. 
I'atterson  v.  Hitchcock,  183,  200,  203, 

511. 

Patterson  v.  Keystone  Min.  Co.,  497. 
Patterson  v.  Tarbill,  192. 
Paul  v.  Cragnaz,  484,  494. 
Paul  Jones  Lode,  195,  226,  365. 
Pay  ton  v.  Burns,  211. 
Peabody  Gold  Min.  Co.  v.   Gold  Hill 

Min.  Co.,  54,  204,  393,  397,  400. 
Peacock  Mill  Site,  360. 
Pearsall  &  Freeman,  252. 
Pelican  &  Dives  Min.  Co.  v.  Snodgrass, 

160,  290,  314,  315,  325. 
Penn  v.  Oldhauber,  27,  282. 
Pennsylvania   Coal   Co.  v.   Sanderson, 

532. 
Pennsylvania  Consol.  Min.  Co.  v.  Grass 

Valley  Exploration  Co.,  411,  413. 
Pennsylvania  Min.   Co.   v.  Bales,  377, 

378. 

Pennsylvania  Min.  Co.  v.  Smith,  487.  • 
Pennsylvania  Min.  &  Imp.  Co.  v.  Ever- 
ett &  M.  C.  R.  Co.,  73,  74. 
Pennybecker  v.  McDougal,  342. 
Penny  v.  Central  Coal  &  Coke  Co.,  519. 
People  v.  De  France,  519. 
People  v.  District  Court,  493,  522. 
People  v.  Gold  Run  Ditch  &  Min.  Co., 

533,  534. 

People  v.  Naglee,  168. 
People  v.  Pittsburgh  R,  Co.,  522. 
People's  Gas  Co.  v.  Tyner,  471. 
I'eoria  &  Colorado  Mill.  &  Min.  Co.  v. 

Turner,  151,  180,  303,  327. 


Peralta  v.  U.  S.,  60. 

Perego  v.  Dodge,  375,  379. 

Pereles  v.  Weil,  463. 

Perigo  v.   Envin.  25,  176,  190. 

Perry  County  Coal  Min.  Co.  v.  Maclin, 

505. 

Peters  v.  Tonopah  Min.  Co.,  210. 
Peters  v.  U.  S.,  50. 
Peters  v.  Van  Horn,  93. 
Peterson  v.  Bullion-Beck  &  Champion 

Min.  Co.,  486. 
Peterson  v.  Hall,  502. 
Peyton  v.  Desmond,  51,  5i> 
Pharis  v.  Muldoon,  290,  291.  303,  318. 
Phelps  v.  Church  of  Our  Lady  Help  of 

Christians.  119. 
Phelps  v.  Kellogg.  409. 
Phenix  Mill.  &  Min.  Co.  v.  Lawrence, 

156. 

Phifer  v.  Heaton,  119. 
Philadelphia  R.,   Coal   &   Iron   Co.    v. 

Taylor,  534. 

Phillips  v.  Brill,  156,  164,  179,  180. 
Phillips    v.    Collinsville    Granite    Co., 

503,  505. 

Phillips  v.  Hamilton,  479,  480. 
Phillips  v.  Salmon  River  Mining  &  De- 
velopment Co.,  143,  145,  510. 
Phillips  v.  Smith,  156,  157,  378,  381. 
Phillpotts  v.  Blasdel,  208,  501. 
Phoenix  Min.  &  Mill.  Co.  v.  Scott,  395, 

497,  498,  509. 

Phoenix  Water  Co.  v.  Fletcher,  531. 
Pico  v.  Columet,  495. 
Pierce  v.  Barney,  525. 
Pierce  v.  Pierce,  493. 
Pilot  Hill  &  Other  Lodes,  200,  414. 
Pittsburg  Concentrating  &  Min.  Co.  v. 

Glick,  489. 
Pittsburg  Vitrified  Pav.  &  Bldg.  Brick 

Co.  v.  Bailey,  488. 
Plumrner  v.  Hillside  Coal  &  Iron  Co., 

473,  484,  503,  525. 
Plumnier  v.  Iron  Co..  503. 
Poe  v.  Ulrey,  471,  473,  475,  480. 
Poire  v.  Leadville  Imp.  Co.,  161,  303. 
Poire  v.  Wells,  96,  161,  393. 
Pollard  v.  Shively,  187,  194,  205,  213, 

215. 
Poplar  Creek  Consol.  Quartz  Mine.  140. 

180. 
Porter  v.  Tonopah  North  Star  Tunnel 

&  Development  Co.,  151,  206. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


711 


Potter  v.  U.  S.,  50. 

Poujade  v.  Ryan,  25,  206. 

Powell  v.  Ferguson,  370. 

Power  v.  Sla,  212,  2sa.  308.  300,  326. 

Pralus  v.  Pacific  Gold  &  Silver  Min. 

Co.,  26. 
Pratt  v.  United  Alaska  Min.  Co.,  198, 

258. 

Preston  v.  Hunter,  216,  218,  325. 
Preston  v.  White,  120,  470,  502. 
Preteca  v.  Maxwell  Land  Grant  Co., 

517. 

Price  v.  Black,  479. 
Price  v.  Mclntosh,  27,  220,  253. 
Prince  v.  Lamb,  483,  491. 
Princeton  Min.  Co.  v.  First  Nat.  Bank 

of  Butte,  172. 

Pringle  v.  Vesta  Coal  Cor.,  504. 
Prosser  v.  Finn,  171. 
Prosser  v.  Parks,  19,  26,  27,  161. 
Providence   Gold   Min.   Co.   v.   Burke, 

168,  169,  215,  307,  310,  376. 
Providence   Gold  Min.   Co.   v.    Marks, 

376,  378. 

Purdum  v.  Laddin,  28,  213,  215. 
Purtle  v.  Steffee,  88. 
P.  Wolenberg,  391. 
Pyke  v.  Burnside,  529. 


Queen,  The,  v.   Earl  of  Northumber- 
land, 11. 

Quigley  v.  Gillett,  307,  308,  368,  381. 
Quimby  v.  Boyd,  190,  282,  283,  379. 
Quinn  v.  Baldwin  Star  Coal  Co.,  464. 


Rablin,  252. 

Rader  v.  Allen,  398. 

Rara  Avis  G.  &  S.  M.  Co.  v.  Bouscher, 

276. 

Raunheim  v.  Dahl,  261. 
Rawlings  v.  Armel,  473,  476,  479. 
Rawlings  v.  Casey,  378. 
Raymond  v.  Johnson,  481. 
Raynolds  v.  Hanna,  484. 
Reagan  v.  McKibben,  199,  481,  498. 
Rebecca  Gold  Min.  Co.  v.  Bryant,  287. 

327,  358,  350. 

Redden  v.  Harlan,  158.  360,  165. 
Redfield  v.  Parks,  398,  525. 


Red  Mount  Consol.  Min.  Co.  *.  Esler, 
495. 

Red  Wing  Gold  Min.  Co.  v.  Clays,  405. 

Reed  v.  Munn,  511. 

Reed  v.  Nelson,  465,  466. 

Reedy  v.  Wesson,  511. 

Reiner  v.   Scliroeder,   147,  149,   ISO. 

Reins  v.  Murray,  250. 

Remmington  v.  Bauclit,  276,  281. 

Reno  Smelting,  Milling  &  Reduction 
Works  v.  Stevenson,  528. 

Renshaw  v.  Switzer,  308,  321. 

Repeater  &  Other  Lode  Claims,  297. 

Republican  Min.  Co.  v.  Tyler  Min.  Co., 
426. 

Resurrection  Gold  Min.  Co.  v.  Fortune 
Gold  Min.  Co.,  515. 

Revenue  Mm.  Co.  v.  Balderston,  31. 

Rex  v.  Brettell,  144. 

Rex  v.  Sedgley,  144. 

Reynolds  v.  Iron  Silver  Min.  Co.,  264, 
267,  399,  404,  408. 

Reynolds  v.  Pascoe,  149,  152,  180. 

Rialto  No.  2  Placer  Min.  Claim.  253. 

Riborado  v.  Quang  Pang  Min.  Co.,  20. 

Rice  v.  Rigley,  483. 

Richards  v.  Dower,  243. 

Richards  v.  Wol fling,  281,  340. 

Richlands  Oil  Co.  v.  Morriss,  474,  476. 

Richmond  Min.  Co.  of  Nevada  v.  Eu- 
reka Consol.  Min.  Co.,  125,  373,  401, 
417,  458. 

Richmond  Min.  Co.  v.  Rose,  198,  377, 
380,  384,  393. 

Richmond  Natural  Gas  Co.  v.  Daven- 
port, 471,  472. 

Richter  v.  State  of  Utah,  69,  119. 

Rico-Aspen  Consol.  Min.  Co.  v.  Enter- 
prise Min.  Co.,  242. 

Rico  Lode,  352. 

Riley  v.  North  Star  Min.  Co.,  452.  458. 

Ripley  v.  Park  Center  Land  &  Water 
Co.,  530. 

Risen  v.  Wiseman,  151,  524. 

Riste  v.  Morton.  191,  298. 

Ritter  v.  Lynch,  533. 

Roaring  Creek  Water  Co.  v.  Anthra- 
cite Coal  Co.  of  Pittsburg,  532. 

Robert  Gorlinski,  49. 

Robert  S.  Hale,  277. 

Roberts  v.  Date.  305.  333,  483. 

Roberts  v.   Jepson.   245. 

Roberts  v.  Richards,  39. 


712 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Roberts  v.  Wilson,  26. 

Roberts  &  Corley  v.  McFadden,  Weiss 

&  Kyle,  472. 

Robertson  v.  Smith,  15,  105,  158. 
Robertson  v.  Youghiogheny  River  Coal 

Co.,  504,  506. 
Rockwell  v.  Graham,  372. 
Rodgers  v.  Pitt,  530. 
Rogers,  245. 

Rogers  v.  Clark  Iron  Co.,  53. 
Rogers  v.  Cooney,  489,  533. 
Romance   Lode   Mining  Claim,   359. 
Roman  Placer  Mining  Claim,  253,  254. 
Rorer  Iron  Co.  v.  Trout,  486. 
Rose    No.    1    and    Rose    No.   2    Lode 

Claims,  171. 
Rose  v.  Richmond  Min.  Co.,  368,  377, 

378,  381,  384,  393. 
Rosenthal  v.  Ives,  26,  377. 
Roseville  Alta  Min.  Co.  v.  Iowa  Gulch 

Min.  Co.,  342,  395,  498. 
Rosina  T.  Gerbauser,  362. 
Rough  v.  Simmons,  378. 
Rowland  v.  Cox,  478. 
Roxanna  Gold  Mining  &  Tunneling  Co. 

v.  Cone,  457. 
Royston  v.  Miller,  278,  279,  297,  332, 

496. 

Ruffners  v.  Lewis'  Ex'rs,  495. 
Rush  v.  French,  28,  156,  174. 
Russell  v.  Chumasero,  190,  191,  192. 
Russell  v.  Dufresne,  149,  152. 
Russell  v.  Hoyt,  217,  220. 
Russell  v.   Maxwell   Land  Grant  Co., 

349. 
Russell  v.  Wilson  Creek  Consolidated 

Min.  &  Mill.  Co.,  342,  343. 
Rutter  v.  Shoshone  Min.  Co.,  376. 
Ryan  v.  Granite  Hill  Mining  &  Devel- 
opment Co.j  97,  370. 


Sage  v.  Maxwell,  80. 

Sage  v.  Rudnick,  75. 

Sage  v.  U.  S.,  75. 

St.  Clair  v.  Cash  Gold  Min.  &  Mill.  Co., 

514. 

St.  John  v.  Kidd,  26,  301,  303,  498. 
St.  Joseph  &  D.  C.  R.  Co.  v.  Baldwin, 

74. 
St.  Louis  Min.  &  Mill.  Co.  v.  Montana 

Min.  Co.,  373.  383,  405,  406,  415,  433, 

437,  441,  444,  517. 


St.  Louis  Smelting  &  Refining  Co.  v. 

Kemp,  6,  142,  143,  270,  278,  280,  393. 
St.  Paul,  M.  &  M.  R.  Co.  v.  Donohue, 

76,  81. 
St.  Paul  &  P.  R.  Co.  v.  Northern  Pac. 

R.  Co.,  78. 

Salmon  v.  Symouds,  87. 
Salstrom  v.  Orleans  Bar  Gold  Min.  Co., 

533. 
Salt  Lake  Hardware  Co.  v.  Chainman 

Mining  &  Electric  Co.,  510. 
Samuel  E.  Rogers,  245. 
Samuel  McMaster,  368. 
Sanders  v.  Noble,  192,  213,  221,  324. 
Sanderson  v.  Pennsylvania  Coal   Co., 

532. 

Sand  Point  Water  &  Light  Co.  v.  Pan- 
handle Develop.  Co.,  529. 
Sands  v.  Cruikshank,  161. 
Sandy  River  Cannel  Coal  Co.  v.  White 

House  Cannel  Coal  Co.,  514. 
Sanford  v.  Sanford,  52. 
San  Jose  Land  &  Water  Co.  v.   San 

Jose  Ranch  Co.,  81. 
San  Miguel  Consol.  Gold  Min.  Co.  v. 

Bonner,  203,  411. 
San  Pedro  &  Canon  del  Agua  Co.  v.  U. 

S.,   53,  62,  400. 
Santee,  347. 
Sarah  L.  Bigelow,  468. 
Satisfaction  Extension  Mill   Site,  227. 
Saunders  v.   La  Purisima   Gold  Min. 

Co.,  70. 
Saunders  v.  Mackey,  293,  330,  332,  333, 

334. 

Scheel  v.  Alhambra  Min.  Co.,  239. 
Schneider  v.  Hutchinson,   71. 
Schrinipf  v.  Northern  Pac.  R.  Co.,  119, 

120. 

Schroder  v.  Aden  Gold  Min.  Co.,  379. 
Schultz  v.  Allyn,  377. 
Schultz  v.  Keeler,  173. 
Schwab  v.  Beam,  530. 
Score  v.  Griffin,  147,  148. 
Scott  v.  Maloney,  368,  376. 
Scranton  v.  Phillips,  506,  507. 
Sears  v.  Taylor,  26. 
Seidler  v.  Lafave,  191,  192,  206. 
Seidler  v.  Maxfield,  192,  215. 
Selma    Oil    Claim,   376. 
Senior  v.  Anderson,  529. 
Setteinbre  v.  Putnam,  493. 
Settle  v.  Winters,  487. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


713 


Seymour  v.  Fisher,  204,  222,  340. 
.our  K.  Bradford,  171. 
:•  v.  Constaus,  370,  524. 
Shannon  v.  U.  S.,  14. 
Sharkey    v.    Candiani,    160,    174,    192, 

'200.  301,  305,  3U4,  390. 
Sharp  v.  Behr,  4SG. 
Shattuck  v.  Costello,  151,  191. 
Shaw  v.  Kellogg,  63,  87. 

?  v.  Wallace,  145. 
Shea  v.  Nilima,  168,  481. 
Shenandoah  Land  &  Anthracite  Coal 

Co.  v.  Hise,  486. 
Shepard  v.  Murphy,  218,  219. 
Shepherd  v.  Bird,  119. 
Shepherd  v.   McCalmont  Oil  Co.,  473, 

475,  477. 

Shepley  v.  Cowan,  50. 
Sherlock   v.   Leighton,    278,    280,    281, 

307,  309,  377. 
Shiver  v.  U.  S.,  85. 
Shoemaker  v.  U.  S.,  13,  37. 
Shoshone  Min.  Co.  v.  Rutter,  126,  340, 

,°,75.  501. 
Shreve  v.  Copper  Bell  Min.  Co.,  117, 

501. 
Sierra  Blanc  Mining  &  Reduction  Co. 

v.  Wine-hell,  152,  160,  208,  323,  324. 
Sierra  Grande  Min.  Co.  v.  Crawford, 

227. 

Silsby  v.  Trotter,  484,  485. 
Silver  Bow  M.  &  M.  Co.  v.  Clark,  99, 

372,  401. 

Silver  v.  Bush,  470. 
Silver  City  Gold  &  Silver  Min.  Co.  v. 

Lowry.  153,  160,  181,  311,  381,  525. 
Silver  King  Lode,  385. 
Silver  Peak  Mines  v.  Hanchett,  517. 
Silver   Peak  Mines   v.   Valcalda,   227, 

230. 

Silver  Star  Mill  Site,  360. 
Single  v.  Schneider,  514,  516. 
Sisson  v.  Sommers,  27,  29,  183,  274. 
Sjoli  v.  Dreschel,  80. 
Skillman  v.  Lachman,  492. 
Slaght  v.  Northern  Pac.  R.  Co.,  73. 
Slater  v.  Haas,  492. 
Slavonian   Min.  Co.   v.   Perasich,  273, 

284.  290,  291,  321,  322. 
Slothower    v.    Hunter,    213,    215,   218. 

310,  337,  359. 
Smart  v.  Jones.  4«9. 
Smith  v.  Cascaden,  215. 


Smith  v.  Denniff,  527. 

Smith  v.  Imperial  Copper  Co.,  378. 

Smith  v.  Forbes,  521. 

Smith  v.  Jones,  487,  521. 

Smith  v.  McKerracher,  50. 

Smith  v.  Newell,  161,  205,  214,  216,  220. 

Smith  v.  Northern  Pac.  R.  Co.,  75. 

Smith  v.  Reynolds,  488. 

Smith  v.  Seattle,  508. 

Smith  v.  Sherman  Min.  Co.,  145. 

Smith  v.  U.  S.,  50. 

Smoot  v.  Consolidated  Coal  Co.,  502. 

516. 

Smuggler  Min.  Co.  v.  Trueworthy,  380. 
Smythe  v.  Henry,  302,  407. 
Snoddy  v.  Bolen,  100. 
Snoddy  v.  Clark,  100. 
Snodgrass  v.  South  Penn  Oil  Co.,  472. 
Snow  v.  Nelson,  488. 
Snyder  v.  Burnham,  490. 
Snyder  v.  Wallace,  370. 
Sousa  v.  Pereira,  73. 
Souter  v.  Maguire,  211. 
Southbridge  Sav.  Bank  v.  Mason,  342. 
South  Dakota  v.   Vermont  Stone  Co., 

67. 
South  End  Min.  Co.  v.  Tinney,  286,  307> 

326,  391,  524.  525. 
Southern  California  R.  Co.  v.  O'Don- 

nell,  73,  200,  203. 

Southern  Cross  Gold  Min.  Co.  of  Ken- 
tucky v.   Sexton,  52,   286.  287,   297, 

356. 
Southern  Cross  Gold  &  Silver  Min.  Co. 

v.  Europa  Min.  Co.,  186,  191,  211. 
Southern  Nevada  Gold  &  Silver  Min. 

Co.   v.   Holmes   Min.   Co.,   414,   420, 

423. 
Southern   Pac.   R.   Co.   v.  Allen  Gold 

Min.  Co.,  81. 

Southern  Pac.  R.  Co.  v.  Lipman,  75. 
Southern  Pac.  R.  Co.  v.  U.  S.,  63,  76. 
South  Star  Lode,  262,  363. 
Spalding  v.  Chandler,  90. 
Sparrow  v.   Strong,  15,  66. 
Speed  v.  McCarthy,  332. 
Spokane  &  B.  C.  R.  Co.  v.  Washington 

&  G.  N.  R.  Co.,  71,  81 
Sprague  v.  Locke,  518. 
Standard  Quicksilver  Co.  v.  Habishaw, 

87,  393. 

Stanley  v.  Mineral  Union,  67. 
Starn  v.  Huffman,  479. 


714 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Starr  v.  Huffman,  480. 

State  v.  District  Court,  97,  195,  400, 

421,  436,  519,  520. 
State  v.  Ohio  Oil  Co.,  474. 
State  v.  Tanner,  TO. 
State  of  California,  65,  68,  69,  70. 
State  of  California  v.  Wright,  68. 
State  of  Kansas  v.  State  of  Colorado, 

528. 

State  of  Utah,  66,  67. 
State  of  Utah  v.  Allen,  67. 
State  of  Washington  v.  McBride,  56. 
Steel  v.  Gold  Lead  M.  Co.,  308,  373. 
Steel  v.  St.  Louis  Smelting  &  Refining 

Co.,  96,  97,  392,  393. 
Steele,  353. 
Steele  v.  Tanana  Mines  R.  Co.,  73,  86, 

151,  162. 

Steelsmith  v.   Fisher    Oil   Co.,  477. 
Steelsmith  v.  Gartlan,  473,  475. 
Steen  v.  Wild  Goose  Min.  Co.,  220. 
Stemmons  v.  Hess,  356. 
Stemwinder  Min.  Co.  v.  Emma  &  Last 

Chance  Consol.  Min.  Co.,  198. 
Stephens  v.  Golob,  297,  333. 
Stephenson  v.  Wilson,  525. 
Stevens  v.  Gill,  117,  118,  134,  413. 
Stevens  v.  Grand  Cent.  Min.  Co.,  371, 

401,  496. 
Stevens  v.  Williams,  132,  133,  134,  140, 

141,  414. 

Steves  v.  Carson,  376. 
Stewart  v.  Douglas,  482. 
Stewart  v.  Gold  &  Copper  Co.,  168,  169. 
Stewart  v.  McHarry,  51. 
Stewart  v.  Westlake,  334. 
Stickley  v.  Mulrooney,  494. 
Stinchfield  v.  Gillis,  126,  455. 
Stinson  v.  Hardy,  485. 
Stoakes  v.  Barrett,  9. 
Stockbridge    Iron    Co.    v.    Cone    Iron 

Works,  519. 
Stolp  v.  Treasury  Gold  Min.  Co.,  282, 

344,    374,    381. 
Stone  v.  Bumpus,  275,  532. 
Stone  v.  Geyser  Quicksilver  Min.  Co., 

303,  306. 

Stone  v.  Marshall  Oil  Co.,  515. 
Strang  v.  Ryan,  27,  224,  331,  333. 
Strasburger  v.  Beecher,  308. 
Strepey  v.   Stark,   176,   182,   215,  220, 

223,  336,  337. 
Strettell  v.  Ballou,  521. 


Strickley  v.  Highland  Boy  Gold  Min. 

Co.,  522. 

Strickley  v.  Hill,  168,  169,  380. 
Stuart  v.  Adams,  488,  490. 
Stuart  v.  Com.,  509. 
Sturr  v.  Beck,  528. 
Suessenbach  v.  First  Nat.  Bank,  372, 

395,  401. 
Suffolk  Gold  Min.  &  Mill.  Co.  v.  San 

Miguel  Consol.  Min.  &  Mill.  Co.,  531. 
Sullivan  v.  Hense,  25. 
Sullivan  v.  Iron  Silver  Min.  Co.,  IN;:;. 

264,  267. 

Sullivan  v.  Schultz,  88,  105,  158. 
Sullivan  v.   Sharp,  152,  153,  154,  210, 

222,  289,  290,  338,  339. 
Suit  v.  Hochstetter  Oil  Co.,  120,  470, 

473. 

Summerville  v.  Appolo  Gas    Co.,  473. 
Sunnyside  Coal  &  Coke  Co.  v.  Reitz, 

515. 
Surprise    Fraction    and    Other    Lode 

Claims,  372. 

Sutter  County  v.  Nicols,  534. 
Swearingen  v.  Steers,  519. 
Sweeney  v.  Hanley,  496. 
Sweet  v.  Brown,  499. 
Sweet  v.  Webber,   143,  249,  250,  252, 

260,  270,  274,  282. 
Swigart  v.  Walker,  287. 
Sylvester  v.  Jerome,  535. 


Table  Mt.  Tunnel  Co.  v.  Stranahan.  27, 
497. 

Tabor  v.  Dexler,  128,  133. 

Talbott  v.  King,  99,  372,  394,  396,  401. 

Talmadge  v.  St.  John,  191,  213,  214, 
215,  219. 

Tarn  v.  Story,  277,  342,  344. 

Tanner  v.  Treasury  Tunnel,  Mining  & 
Reduction  Co.,  243,  522,  523. 

Tartar  v.  Spring  Creek  Water  &  Min- 
ing Co.,  151,  227. 

Taylor  v.  Castle,  492. 

Taylor  v.  Middleton,  188,  303. 

Taylor  v.  Parenteau,  194,  203. 

Telluride  Additional  Townsite,  99. 

Temescal  Oil  Mining  &  Development 
Co.  v.  Salcido,  205,  250,  256,  278,  292, 
305. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Tennessee  Coal,  Iron  &  R.  Co.  v.  Ham- 
ilton, 533. 
Tennessee  Oil,  Gas  &  Mineral  Co.  v. 

Brown,  472,  484. 
Terrell  v.  Hoge,  166. 
Terrible   Min.    Co.   v.   Argentine   Min. 

Co.,  155,  181,  182,  203. 
Territory  v.  Lee,  168. 
Territory  v.  Mackey,  118. 
Territory  v.  Persons,  63. 
Territory  of  New  Mexico,  65. 
Thallmann    v.   Thomas,   52,   156,    157, 

335,  400. 

Thallman  v.  Thomas,  205. 
Thayer  v.  Spratt,  88. 
Thomas  v.  Chisholm,  171,  377. 
Thomas  v.  Filing,  371,  387. 
Thomas   Iron   Co.   v.  Allentown  Min. 

Co.,  519. 

Thompson  v.  Burk,  162,  334. 
Thompson  v.  Jacobs,  272,  273. 
Thompson  v.  Spray,  173,  174,  176,  211, 

224,  336. 

Thomson  v.  Allen,  308. 
Thornton  v.  Kaufman,  378. 
Threatt  v.  Brewer  Min.  Co.,  533. 
Tilden  v.  Intervener  Min.  Co.,  356. 
Tinkham  v.  McCaffrey,  84,  225. 
Tipton  Gold  Min.  Co.,  346. 
Tischler  v.  Pennsylvania  Coal  Co.,  505, 

508. 
Tombstone  Mill.  &  Min.  Co.  v.  Way  Up 

Min.  Co.,  414,  423,  439. 
Tombstone  Townsite  Cases,   102,  339, 

396. 

Tomera  Placer  Claim,  175. 
Tom   Moore  Consol.   Min.   Co.  v.   Ne- 

smith,  350. 

Tonopah   Fraction  Min.  Co.  v.   Doug- 
lass, 168,  378. 

Tonopah  &  S.  L.  Min.  Co.  v.  Tonopah 
Min.  Co.  of  Nevada,   153,  154,  155, 
160,  181,  204,  206,  222,  223,  224,  289, 
333,  336,  337,  521. 
Topsey  Mine,  352. 
Tornanses  v.  Melsing,  168. 
Tough   Nut  and  Other  Lode   Claims, 

353. 

Tough  Nut  No.  2  and  Other  Lode  Min- 
ing Claims,  343. 

Tousley  v.  Galena  Min.  &  Smelting  Co., 
100. 


715 


v.  Kirk,  19,  79,  86,  97,  1U:!, 
152,  157,  200. 

Travis  Placer  Min.  Co.  v.  Mills.  532. 
Traylor  v.  Barry,  520. 
Treadway  v.  Sharon,  342. 
Tmulweil  v.  Marrs.  205,  221. 
Treasury  Tunnel,  Mining  &  Reduction 

Co.  v.  Boss,  153,  181,  210,  312. 
Tredinnick  v.  lied  Cloud  Consol.  Min. 

Co.,  143,  145,  510. 
Trees  v.  Eclipse  Oil  Co.,  472,  474. 
Trevaskis  v.  Peard,  284,  SOG,  308. 
Tripp  v.  Dumphy,  276,  359. 
Trustees    of     Hawesville    v.     Hawes' 

Heirs,  101. 

Tuck  v.  Downing,  491. 
Tucker  v.  Jones,  530. 
Tucker  v.  Masser,  393. 
Tulare    Oil    &    Min.    Co.    v.    Southern 

Pac.  R.  Co.,  56;  119. 
Tuolumne  Consol.  Min.  Co.  v.  Maier, 

152,  160,  161,  180. 
Turner  v.  Cole,  530. 
Turner  v.  Sawyer,  294,  296,  297,  333 

371. 

Tuttle  v.  White.  515. 
Twaddle  v.  Winters,  528. 
Two  Sisters  Lode  &  Mill  Site.  227. 
Tyee  Consol.  Min.  Co.  v.  Jennings,  524. 
Tyee   Consol.    Min.   Co.   v.   Langstedt 

398,   524. 
Tyler   Min.  Co.  v.   Last  Chance  Min. 

Co.,  221,  312,  426. 
Tyler  Min.  Co.  v.  Sweeney,  302,  30G, 

419,  423,  426,  428. 


u 


Uinta  Tunnel,  Min.  &  Transp.  Co.  v. 

Ajax  Gold  Min.  Co.,  175,  243,  398. 
Uinta  Tunnel,  Min.  &  Transp.  Co.  v, 

Creede  &  Cripple  Creek  Min.  &  Mill. 

Co.,  220. 
Union  Coal  Co.  v.  City  of  La    Salle 

100,  516. 

Union  Consol.  Silver  Min.  Co.  v.  Tay- 
lor, 497. 
Union  Min.  &  Mill.  Co.  v.  Leitch.  177. 

102,   210. 
Union    Nat.    Bank    of    St.    Louis    v. 

Matthews,   171. 


16 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Union  Oil  Co.,  119,  120,  166,  245,  246, 
470. 

Union  Pac.  R.  Co.  v.  Harris,  7S 

U.  S.  v.  Alaska  Packers'  Ass'n,  89. 

U.  S.  v.  Bachelder,  72. 

U.  S.  v.  Blendauer,  93. 

U.  S.  v.  Bowen,  21. 

U.  S.  v.  Burkett,  53. 

U.  S.  v.  Central  Pac.  R.  Co.,  79,  115. 

U.  S.  v.  Chandler-Dunbar  Water  Pow- 
er Co.,  399. 

U.  S.  v.  Chicago,  M.  &  St.  P.  R.  Co.,  70, 
76. 

U.  S.  v.  Citizens'  Trading  Co.,  54. 

U.  S.  v.  Clark,  399. 

U.  S.  v.  Four  Bottles  Sour  Mash  Whis- 
ky, 90. 

U.  S.  v.  Homestake  Min.  Co.,  515. 

U.  S.  v.  Iron  Silver  Min.  Co.,  53,  125, 
128,  136,  262,  276,  349,  393,  399. 

U.  S.  v.  Keitel,  463. 

U.  S.  v.  King,  348,  349,  393,  399. 

U.  S.  v.  Laam,  53. 

U.  S.  v.  McLaughlin,  60,  64. 

U.  S.  v.  Marshall  Silver  Min.  Co.,  394. 

U.  S.  v.  Maxwell  Land  Grant  Co.,  53. 

U.  S.  v.  Missouri,  K.  &  T.  R.  Co.,  80. 

U.  S.  v.  Montana  Lumber  Co.,  75. 

U.  S.  v.  Moore,  89. 

U.  S.  v.  North  Bloomfield  Gravel  Co., 
534. 

U.  S.  v.  Northern  Pac.  R.  Co.,  392. 

U.  S.  v.  Oindahl,  39. 

U.  S.  v.  Oregon  &  C.  R.  Co.,  75,  76. 

U.  S.  v.  Reed,  84,  115. 

U.  S.  v.  Rio  Grande  Dam  &  Irrigation 
Co.,  528. 

U.  S.  v.  Robbins,  463. 

U.  S.  v.  Rossi,  114,  118. 

U.  S.  v.  Ruinsey,  398. 

U.  S.  v.  St.  Anthony  R.  Co.,  72. 

U.  S.  v.  San  Pedro  &  Canon  del  Agua 
Co.,  61,  62. 

U.  S.  v.  Schlierholz,  48. 

U.  S.  v.  Schurz,  53. 

U.  S.  v.  Trinidad  Coal  &  Coking  Co., 
173,  462,  463. 

U.  S.  v.  Ute  Coal  &  Coke  Co.,  514,  51",. 
516. 

U.  S.  v.  Winona  &  St.  P.  R.  Co.,  54, 
392,  393,  399,  400. 

United  States  Min.  Co.  v.  Lawson,  396, 
437. 


Upton  v.  Larkin,  160,  179,  180,  215. 
Upton  v.  Santa  Rita  Min.  Co.,  210,  216, 

524. 
Utah  Min.   &   Mfg.   Co.   v.   Dickert  & 

Myers  Sulphur  Co.,  284,  334. 
Utah,  N.  &  C.  R.  Co.  v.  Utah  &  C.  R. 

Co.,  53. 

v 

Valcalda   v.   Silver   Peak   Mines,   227, 

229,  358. 

Van  Buren  v.  McKinley,  26,  212,  213. 
Vandoren  v.  Plested,  119. 
Van  Horn  v.  State,  120,  203,  245. 
Van  Valkenburg  v.  Huff,  174,  224,  317. 
Van  Wagenen  v.  Carpenter,  496. 
Van  Zandt  v.  Argentine  Min.  Co.,  148, 

154,  182,  407.  412,   447,  449 
Venedocia  Oil  &  Gas  Co.  v.  Robinson, 

479. 

Venture  Oil  Co.  v.  Fretts,  473. 
Vietti  v.  Nesbitt,  488. 
Virginia  Coal  &  Iron  Co.  v.  Kelly,  496 

503. 

Vogel  v.  Warsing,  190,  215,  220. 
Volcano  Lode  Min.  Claim,  195. 

w 

Wagner  v.  Dorris,  282. 

Wagner  v.  Mallory,  474. 

Wagstaff  v.  Collins,  85. 

Wailes  v.  Davies,  212,  213,  219,  220, 
275,  277,  308,  321,  325. 

Wakeman  v.  Norton,  200,  203,  404, 
405,  406,  411,  428. 

Walbridge  v.  Board  of  Com'rs  of  Rus- 
sell County,  75. 

Walker  v.  Bruce,  490. 

Walker  v.  Penniugton,  212,  218. 

Wallace,  368. 

Wallace  v.  Elm  Grove  Coal  Co.,  502, 
625. 

Waller  v.  Hughes,  498. 

Wallula  Pac.  R.  Co.  v.  Portland  &  S.  R. 
Co.,  53,  75. 

Walrath  v.  Champion  Min.  Co.,  185, 
415,  416,  418,  419,  420,  439,  440,  441, 
442,  444,  447,  448,  449,  460,  461. 

Walsh  v.  Ervrin,  188,  205. 

Walsh  v.  Henry,  156,  184. 

Walsh  v.  Mueller,  149,  203. 

Walton  v.  Wild  Goose  Mining  &  Trad- 
ing Co.,  247. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


717 


War  Dance  Lode,  195. 
Wardell  v.  Watson,  504. 
Ware  v.  Smith,  185. 
Ware  v.  White,  156,  211,  214,  317. 
Waring  v.  Crow,  303,  306,  307,  331. 
Warnock  v.  De  Witt,  194,  328,  329. 
Waterhouse  v.  Scott,  357,  366,  368. 
Waterloo  Min.   Co.   v.   Doe,   132,   147, 

158,  161,   182,  397,  419,  429. 
Waterman  v.  Banks,  479. 
Waters  v.  Stevenson,  513. 
Watervale  Min.  Co.  v.  Leach,  200,  203, 

204,  397,  423,  454. 

Watford  Oil,  etc.,  Co.  v.  Shipman,  476. 
Watson   v.    May  berry,    152,    180,    196, 

322. 
Weaver   v.   Berwind-Whlte   Coal   Co., 

504,  505,  506. 
Webb   v.    American    Asphaltum    Min. 

Co.,  118,  119,  132,  136. 
Webb  v.  Carlon,  216. 
Wedekind  v.  Bell,  450. 
Weed  v.  Snook,  162,  165,  166,  222,  499. 
Weese  v.  Barker,  156,  218,  494. 
Weill  v.   Lucerne  Min.  Co.,  224,  303, 

304,  306,  501. 
Wells  v.  Davis,  191,  206. 
Wells  v.  Mantes,  529. 
Wemple  v.   Yosemite   Gold   Min.   Co., 

509. 

Wenner  v.  McNulty,  148,  212. 
Western  Indiana  Coal  Co.  v.  Brown, 

505. 
West  Granite   Mountain  Min.   Co.   v. 

Granite  Mountain  Min.  Co.,  196. 
Westmoreland  Coal  Co.'s  Appeal,  145. 
Westmoreland  &  Cambria  Natural  Gas 

Co.  v.  De  Witt,  470. 
Wettengel  v.  Gormley,  477. 
Wetzstein  v.  Largey,  301,  328,  401,  511. 
Weymouth  v.  Chicago  &  N.  W.  R.  Co., 

514. 
Whalen   Consol.    Copper   Min.   Co.    T. 

Whalen,  282. 

Wharton  v.  Stoutenburgh,  486. 
Wheeler  v.  Smith,  118,  119,  246. 
Wheeler  v.  West,  484,  485. 
W.  H.  Hooper,  119. 
W.  H.  Leffingwell,  171. 
White  v.  Lee,  250,  251. 
White  v.  Whitcomb,  98. 
White  v.   Yawkey,   514. 
Whitehouse  v.  Cuminings,  507. 


White  Star  Min.  Co.  v.  Hultberg, 
Whiting  v.  Straup,  153,  156,  160,  105, 

1G6,  173. 

Whitney  v.  Haskell,  161. 
Wholey  v.  Cavanaugh,  499. 
Wiese  v.  Union  Pac.  R.  Co.,  75. 
Wight  v.  Dubois,  356,  373,  386,  387. 
Wilcox  v.  Eastern  Oregon  Land  Co., 

75. 

Wilcox  v.  McConnell,  402. 
Wilhelm  v.  Silvester,  454. 
Wilkins  v.  Abell,  484. 
Wilkinson  v.  Northern  Pac.  R.  Co.,  73. 
Willard  v.  Tayloe,  488. 
Willeford  v.  Bell,  148,  186,  187. 
William  Rablin,  252. 
William  S.  Chessman,  277. 
Williams,  355. 
Williams   v.   Eldora   Enterprise   Gold 

Min.  Co.,  510. 

Williams  v.  Gibson,  504,  506. 
Williams  v.  Hawley,  276 
Williams  v.  Hay,  506. 
Williams  v.  South  Penn  Oil  Co.,  502, 

504. 

Williams  v.  U.  S.,  54. 
Williamson  v.  Jones,  495. 
Williamson  v.  U.  S.,  463,  4G9. 
Willitt  v.  Baker,  287,  320,  377,  381. 
Wills  v.  Blain,  307,  310. 
Willson  v.  Cleaveland,  308. 
Wilmore  Coal  Co.  v.  Brown,  480,  486. 
Wilms  v.  Jess,  505,  506. 
Wilson  v.  Freeman,  176,  221,  314,  344, 

374,  381,  382. 
Wilson  v.  Harnette,  520. 
Wilson  v.  Hoffman,  517. 
Wilson  v.  Philadelphia  Co.,  476. 
Wilson  v.  Triumph  Consol.  Min.  Co., 

168,  169,  191,  278. 
Wilson  v.  Youst,  474. 
Wiltsee   v.   King   of  Arizona   Min.   & 

Mill.  Co.,  211,  216,  221,  222. 
Windmuller  v.   Clarkson,   482. 
Winscott  v.  Northern  Pac.  R.  Co.,  56. 
Wisconsin  Cent.  R.  Co.  v.  Forsythe,  52, 

64. 

Wisconsin  Cent.  R.  Co.  v.  Price  Coun- 
ty, 69,  70. 
Wixon  v.  Bear  River  &  Auburn  Water 

&  Mining  Co.,  531. 
Wolenberg,  ,301. 
Wolfe-  v.  Childs,  494,  405. 


18 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Wolfley  v.  Lebanon  Min.  Co.,  15,  17, 

415. 

Wolverton  v.  Nichols,  375,  380. 
Woodland  Oil  Co.  v.  Crawford,  475. 
Wood  Placer  Mining  Co.,  252,  253. 
Woodruff  v.  North  Bloomfield  Gravel 

Min.  Co.,  23,  27,  533. 
Woods  v.  Holden,  385,  410,  450,  451. 
Woodside  v.  Ciceroni,  485. 
Woodworth  v.  McLean,  488. 
Woody  v.  Bernard,  27,  36,  282. 
Woody  v.  Hinds,  378. 
Worthen  v.  Sidway,  250,  252,  288,  290, 

306,  307,  318,  395. 
Wright  v.  Guier,  517. 
Wright  v.  Killian,  282. 
Wright  v.  Lyons,  21,  189,  194. 
Wright  v.  Sioux  Consol.  Min.  Co.,  350. 
Wright  v.  Town  of  Hartville,  370,  374. 
Wulf  v.  Manuel,  308. 
Wyatt  v.  Larimer  &  Weld  Irr.  Co., 

530. 


Yandes  v.  Wright,  504,  505,  506. 
Yankee  Lode  Claim,  342,  343. 
Yarwood   v.    Johnson,    279,    282,   283, 
307,  310,  333. 


Yellow  Poplar  Lumber  Co.  y.  Thomp- 
son's Heirs,  503,  525. 

Yolo  County  v.  Nolan.  56. 

York  v.  Davidson,  533. 

Yosemite  Gold  Min.  &  Mill.  Co.  v. 
Emerson,  29,  206,  290,  310. 

Yosemite  Valley  Case,  85. 

Youghiogheny  River  Coal  Co.  v.  Alle- 
gheny Nat.  Bank,  504. 

Young  v.  Ellis,  484. 

Young  v.  Forest  Oil  Co.,  478. 

Young  v.  Goldsteen,  97,  370,  375. 

Yreka  Min.  &  Mill.  Co.  v.  Knight,  205, 
214,  278. 

Yuba  County  v.  Cloke,  533,  534. 


Zeckendorf  v.  Hutchison,  '299. 

Zephyr  and  Other  Lode  Min.  Claims, 

244. 
Zerres  v.  Vanina,  205,   206,  212,  213, 

218,  219,  220,  307,  311,  325. 
Zimmerman  v.   Funchion,   199,  258. 
Zimmerman  v.  McCurdy,  53. 
Zollars  Y.  Evans,  159,  182,  203. 


INDEX. 


[THE  FIGURES  REFER  TO  PAGES.] 


A 

ABANDONMENT, 

see  Forfeitures ;  Relocation. 
of  claims,  definitions,  300-305. 
of  discovery  on  lode  claim,  153,  154,  159. 
of  discovery  of  junior  claim  by  owner  of  conflicting  senior  claim  and 

amendment  of  junior  claim's  certificate,  222-224. 
of  rights  under  tunnel  site  location,  237. 
of  blind  veins  in  tunnel  site  location,  242. 
distinguished  from  forfeiture,  300-305. 
question  of  fact  for  jury,  303. 
intent  as  element,  303-305. 
must  be  bona  fide,  305,  306. 
of  part  of  location,  306. 
by  co-tenants,  306,  307,  331. 
burden  of  proof,  307-309. 
pleading,  308,  309. 

pleading  in  adverse  proceedings,  380. 
of  oil  or  gas  lease,  480. 
of  mining  leases,  486. 

ABSTRACTS  OF  TITLE, 

on  application  for  patent,  354. 

ABUTTING  OWNERS, 

rights  to  minerals  under  streets  in  townsite  entries,  100. 

ACCOUNTING, 
in  general,  519. 
between  co-owners,  494,  495. 

ACTIONS, 

see  Accounting ;    Adverse  Claims  and  Proceedings ;    Condemnation ; 
Ejectment ;   Injunction  ;   Limitation  of  Actions  ;    Partition  ;   Person- 
al Injuries;    Possessory  Actions;   Quieting  Title;   Replevin;    Tres- 
pass;  Trial;   Trover, 
mining  remedies  in  general,  512-525. 

ACTS  OF  CONGRESS, 

regulation  of  mining  in  general,  539-564. 

Revised  Statutes  of  the  United  States.  539-547. 

acts  supplemental  to  Revised  Statutes,  June  6,  1874,  expenditures,  547. 

COST.MIN.L.  (719) 


720  INDEX. 

[The  figures  refer  to  pages.] 
ACTS  OF  CONGRESS— Continued, 

June  6,  1874,  first  annual  expenditure,  547. 

February  11,  1875,  expenditure  in  tunnel,  548. 

May  5,  1876,  Kansas  and  Missouri,  548. 

June  3,  1878,  use  of  timber,  548. 

January  22,  1880,  application  for  patent  by  agent,  and  annual  expend- 
iture, period,  549. 

March  3,  1881,  judgment  on  adverse,  549,  550. 

April  26,  18S2,  verification  of  adverse  by  agent,  proof  of  citizenship, 
550. 

March  3,  1883,  Alabama,  550. 

May  17,  1884,  Alaska,  550,  551. 

August  30,  1890,  right  of  way  for  ditches  and  canals,  551. 

March  3,  1891,  town  sites  on  mineral  lands,  reservoirs,  551,  552. 

August  4,  1892,  building  stone  lands,  552. 

November  3,  1893,  suspension  of  requirement  of  annual  expenditure 
except  as  to  South  Dakota,  552,  553. 

July  18,  1894,  suspension  of  requirement  of  annual  expenditure  ex- 
cept as  to  South  Dakota,  553. 

March  2,  1895,  Wichita  lands  (Oklahoma),  553. 

February  11,  1897,  petroleum  or  other  oil  lands,  553,  554. 

June  4,  1897,  forest  reserves,  554,  555. 

June  10,  1896,  Ft.  Belknap  Indian  reservation,  555. 

June  10,  1896,  Blackfoot  Indian  reservation,  555. 

June  10,  1896,  San  Carlos  Indian  reservation,  555. 

May  14,  1898,  Alaska,  Canadians,  556. 

June  6,  1900,  Alaska,  556,  557. 

June  6,  1900,  Comanche,  Kiowa,  and  Apache  lands,  558. 

January  31,  1901,  saline  lands,  558. 

May  27,  1902,  Uintah  and  White  River  Utes,  558,  559. 

February  12,  1903,  oil  lands,  annual  expenditure,  559. 

March  3,  1903,  Uncoinpahgre  Indian  reservation,  559. 

April  23,  1904,  Flathead  Indian  reservation.  5(30. 

April  '27,  1904,  Crow  Indian  reservation,  560,  561. 

December  21,  1904,  Yakima  Indian  reservation,  561. 

March  3,  1905,  Shoshone  or  Wind  River  Indian  reservation,  561,  562. 

March  22,  1906,  Colville  Indian  reservation.  562. 

June  21,  1906,  Coeur  d'Alene  Indian  reservation.  563. 

March  2,  1907,  Alaska  mining  claims,  annual  expenditure  on,  562,  563. 

May  28,  1908,  Alaska,  coal  lands,  563,  564. 

ACTS  OF  LOCATION, 
see  Location. 

ADIT, 

definitions,  103,  104*  182,  183. 

as  equivalent  of  discovery  shaft,  182,  183. 

ADJACENT    SUPPORT, 

see  Lateral  Support. 

ADVERSE  CLAIMS  AND  PROCEEDINGS, 

see  Protest. 

adverse  proceedings  in  general,  366-385. 
between  claimants  of  lodes  and  placers,  364,  369. 


INDEX.  721 

[The  figures  refer  to  pages.] 

ADVERSE  CLAIMS  AND  PROCEEDINGS— Continued, 
filing  claim,  366,  367. 
description  in  adverse  claim,  367. 
verification,  367,  368. 

appeals  from  decisions  of  land  office,  368. 
amendment,  368,  309. 
who  must  adverse,  3«>9. 
who  may  or  may  not  adverse,  369-373. 
waiver  of  rights,  369,  373,  374. 
failure  to  adverse,  effect,  373. 
court  proceedings  on  adverse  claims,  374-385. 

jurisdiction,  374,  375. 

nature  and  form  of  action,  375,  376. 

right  to  jury  trial,  375,  376. 

time  for  commencement  of,  374,  376,  377. 

parties,  377. 

pleading,  377-380. 

intervention,  380. 

trial,  380,  381. 

nonsuit,  381. 

verdict,  381,  382. 

judgment,  382,  383. 

relation  of  land  department  to  court  proceedings,  383-385. 
federal  statutes  relating  to,  542,  549,  550. 
land  office  regulations,  580,  581. 
forms,  681,  682. 

ADVERSE  POSSESSION, 

of  mining  property  in  general,  523-525. 

as  excuse  for  failure  to  perform  annual  labor,  283,  284. 

application  for  patent  on  title  based  on,  354,  355. 

AFFIDAVITS, 

see  Verification. 

as  to  performance  of  annual  labor,  284-286. 

verification  of,  on  application  for  patent,  federal  statutory  provisions,  545. 
of  citizenship,  federal  statutory  provisions,  550. 

AFTER-ACQUIRED  TITLE, 
passing  of,  501,  502. 

AGENT, 

see  Principal  and  Agent 

AGRICULTURAL  LANDS, 

see  Homestead  Entries, 
effect  of  surveyor's  return,  56,  57. 
segregation  from  mineral  lands,  federal  statutes,  546. 

ALABAMA, 

mineral  lands,  federal  legislation  relating  to,  35.  550, 

ALASKA, 

application  to,  of  American  mining  law,  31. 

federal  legislation  relating  to,  35,  550,  551,  556,  557,  562-564. 

coal  lands,  federal  statutes,  35,  563,  564. 

COST.MIN.L.— 46 


722  INDEX. 

[The  figures  refer  to  pages.] 
ALA  SKA— Continued, 

instructions  from  Interior  Department,  612. 
land  office  regulations,  601-609. 
right  of  aliens  to  locate  claims,  169. 
extension  to,  of  federal  mining  laws,  550,  551,  537. 
mining  privileges  of  Canadians,  federal  statutes,  169,  556. 
recording  notice  of  location  and  other  papers  relating  to  mineral  property, 

federal  statutes,  556,  557. 

improvements,  requirements,  and  affidavits,  federal  statutes,  284,  285,  562. 
land  office  regulations  as  to  mineral  lands,  584,  585. 
miners'  rules,  federal  statutes,  557. 

ALIENS, 

right  to  locate  mining  claims,  167-170. 

federal  statutory  provisions,  539. 
rights  of  alien  heirs,  170. 

AMENDMENT, 

of  location  notice,  210. 

of  record  of  lode  location,  221-224. 

of  certificate  of  location  of  placer  claim,  260. 

relocation  by,  335-341. 

of  adverse  claim,  368,  369. 

of  pleading  in  adverse  proceedings,  378. 

AMERICAN  MINING  LAW, 
definitions,  1. 

ANNUAL  EXPENDITURE, 

see  Improvement  Requirements. 

ANNUAL  LABOR, 

see  Improvement  Requirements. 

ANSWER, 

in  adverse  suit,  379. 

APACHE  INDIAN  LANDS, 

mineral  rights,  federal  statutes,  558. 

APEX, 

see  Subsurface  Rights, 
definitions,  105,  137-140. 
judicial  or  theoretical  apex,  450,  451. 

APPEAL, 

in  land  office,  50. 

from  decision  of  land  office  in  adverse  proceedings,  368. 

APPENDICES, 

United  States  Revised  Statutes  and  acts  of  Congress,  539-564. 

land  office  regulations,  565-592. 

coal  land  laws  and  land  office  regulations  relating  thereto,  593-614. 

timber  and  stone  lands,  regulations  of  land  office,  615-617. 

Indian  lands,  regulations  of  Department  of  Interior  as  to  leasing,  618-640. 

Philippine  mining  laws,  641-663. 

Texas  mining  laws,  664-675. 

forms  "in  patent  proceedings  for  lode  claims,  070-082. 

examination  questions  in  mining  law,  683-090. 


INDEX.  723 

[The  figures  refer  to  pages.] 
APPLICATION, 

see  Adverse  Claims  and  Proceedings;    Lode  Claims;    Patents, 
for  entry  of  timber  or  stone  lands,  468. 
for  order  of  survey,  345,  346. 
for  patent,  343-365. 

for  patent  to  lode  claims,  form,  677,  678. 
to  purchase  lode  claim,  form,  679,  680. 

APPROPRIATION, 

see  Water  Rights, 
as  basis  of  right,  recognition  by  miners'  rules,  5. 

ARIZONA, 

mineral  lands,  federal  legislation  and  territorial  code,  36. 

ARKANSAS. 

mineral  lands,  applicability  and  operation  of  federal  and  state  laws,  36. 

ASPHALT  LANDS, 

Indian  lands,  lease  of,  Interior  Department  regulations,  631-635. 
mineral,  119,  136,  note. 

ASSAY, 

definitions,  108,  note,  489. 
ASSESSMENT  WORK, 

see  Improvement  Requirements. 

ASSOCIATIONS, 

corporation  as  an  association  under  placer  mining  law,  172,  173. 

entry  of  coal  lands  by,  462. 

entry  of  timber  and  stone  lands  by,  467. 

B 

BACK  STOPING, 
definitions,  104. 

BAR  DIGGINGS, 
definitions,  108. 

BASE  ORES, 

definitions,  107,  note. 

BEDDED  DEPOSITS, 
definitions,  125. 

BEHRING  SEA, 

regulations  as  to  mining  on  lands  bordering  on,  557. 

BLANKET  VEINS, 

subsurface  rights,  414. 

BLANKS, 

see  Forms, 
not  furnished,  land  office  regulations,  584. 

BLIND  VEINS, 

see  Location, 
definition,  234. 
in  tnimel  sites,  location  of,  239-242. 

abandonment  of,  242. 


724  INDEX. 

[The  figures  refer  to  pages.] 
BLOSSOM, 

definitions,  105. 
BLOW  OUT, 

definitions,  105. 
BONANZA, 

definitions,  107. 
BONDS, 

title  bonds  coupled  with  mining  leases,  487,  488. 
BOOMING, 

definitions,  110. 

BOUNDARIES, 

see  Location;    Subsurface  Rights. 

lode  locations,  marking  of  on  the  ground,  184-196. 

placer  locations,  marking  of  on  the  ground,  249-258. 

of  lode  claims,  changing,  204,  205. 

maintaining,  205. 

mill  site  locations,  229,  230. 

tunnel  site  locations,  235,  236. 

adoption  of,  on  relocation,  194,  195,  314. 

relocation  on  change  of,  335-341. 
BREAST, 

definitions,  104. 
BRECCIA, 

definitions,  124,  note. 

BRECCIATED    VEIN, 
definitions,  106. 

BUILDING  STONE  LANDS, 

see  Timber  and  Stone  Lands. 

BURDEN  OF   PROOF, 

see  Abandonment;  Forfeiture. 

CALIFORNIA, 

origin  and  development  of  mining  law  in,  2-14. 
mineral    lands,    present    statutory    regulations,    36. 
adjudication  of  Mexioan  land  grants  in,  60-62. 
water  right  system,  527,  528. 

CALIFORNIA  DEBRIS  COMMISSION, 

creation  of,   534. 

CANADIANS, 

mining  privileges  in  Alaska,  federal  statutes,  169,  556. 
CANALS, 

see  Water  Rights. 

CANCELLATION  OF  ENTRY, 
see  Entries. 

CANCELLATION    OF    PATENT, 
see  Patents. 


INDEX.  7-0 

[The  figures  refer  to  pages.] 
CAP, 

definitions,   106. 

CERTIFICATES, 

of  location  of  lode  claim,  211-224. 

of  placer  claim,  259,  260. 

amendment  of,  relocation  by,  335-341. 

amendment  to  aid  in  survey,  345,  347. 

of  intention  to  hold  claim  in  lieu  of  annual  labor,  283,  284. 
of  surveyor  general  as  to   improvement  work,   348,  349. 
of   abstracts   of  title  on   application  for   patent,    354. 
as  to  litigation  affecting  title  by  adverse  possession,  355. 
of  entry,  form  of  register's,  680. 
of  posting  notice  of  intention  to  apply  for  patent,  form  of  register's,  680. 

CHAMBER  DEPOSITS, 
definitions,  125. 

CHARGES, 

see  Fees. 

CHIMNEY, 

definitions,  106,  107. 

CHUTE, 

definitions,  106,  107. 

CITIZENSHIP, 

location  by  alien,   167-170. 
proof  of,  on  application  for  patent,   351-353. 
federal  statutory  provisions,  540,  550. 

CLAIMS, 

see    Adverse    Claims    and    Proceedings;    Location;    Lode    Claims;    Mill 
Sites;  Placer  Claims;  Tunnel   Sites. 

COAL  LANDS, 

Alaska,  extension  of  laws  of  United  States  to,  35. 

federal  statutes,  563,  564,  600,  601. 

land  office  regulations,  601-609. 

instructions  from  Interior  Department,  612. 
entry  and  patent,  462-466. 

ordinary   cash    entry,    463-465. 

preference  rights,  465,   466. 

federal  statutes,  593,  594. 
Indian  lands,  leases,   467. 

Interior  Department  regulations,  618-628,  631-635,  639,  640 
land  office  regulations,  594-600. 
Department  of  Interior  instructions,  610-614. 

COLLATERAL  ATTACK, 
on  patent,   392,   393. 

COLORADO, 

adjudication  of  Mexican  land  grants  in,  61-63. 

mineral    lands    and   mining    operations,    present   legislation    relating    to, 

30. 

mining  locations  on  state  lands,  67. 
water  right   system,   528. 


726  INDEX. 

[The  figures  refer  to  pages.] 
COLVILLE    INDIAN    LANDS, 

mineral  rights,  federal  statutes,  562. 

COMMANCHE  INDIAN  LANDS, 

mineral  rights,  federal   statutes,  558. 

COMMISSIONER    OP    GENERAL   LAND    OFFICE, 
general  statement  of  duties,  49. 

COMPROMISE, 

of  adverse  suits,  383. 

of  extralateral  rights,  458. 

CONCENTRATES, 

definitions,    107,    note. 

CONDEMNATION, 

rights   in   general,   522,   523. 

right  of  way  through  tunnel  site  location,  243,  244. 
CONFLICTS, 

see   Adverse    Claims    and    Proceedings;    Subsurface   Rights. 

affecting  patent  proceedings,  364,  365. 

land  office  regulations,  572,  574,  590. 
CONGRESS, 

see  Acts  of  Congress. 

power  to  withdraw  contest  from  land  department,  50. 
CONNECTICUT, 

mineral  lands,  exception  from  operation  of  federal  legislation,  36. 
CONTACT  DEPOSITS, 

definitions,  125. 

CONTACT  VEINS, 
definitions,  123. 

CONTESTS, 

in  land  department,  50. 

CONTIGUOUS, 

definition,  279,  note. 

CONTINUITY, 
definition,  413. 

CONTINUITY   OF   VEIN, 

see  Subsurface  Rights. 

CONTRACTS, 

see  Grub  Stakes;  Leases;  Title  Bonds;  Vendor  and  Vendee, 
mining  contracts  in  general,  481-489. 
grub  staking  contracts,  481-483. 
mine  working  contracts,  488. 
ore  contracts,  489. 

CONVEYANCES, 

of  mining  property  in  general,  497-511. 

deeds  in  settlement  of  extralateral  rights,  383,  note,  458. 

statute  of  frauds,  497. 

necessity  of  writing,  497-499. 

necessity  of  seal,  498. 


INDEX.  727 

[The  figures  refer  to  pages.} 
CONVEYANCES— Continued, 
imperfect  ed   claims.   408. 
quitclaim  deeds,  4!>0. 
warranty  deeds,  499. 

the  special  "dips,  spurs.1'  etc.,  clause,  500. 
after-acquired  title,  501,  502. 
easements  on  severance,  502-508. 
severance  of  surface  and  subsurface  rights,  effect  of  right  to  subjacent 

support,  502-508. 

effect  on  right  to  lateral  support,  508. 
examination  of  title,  510,  611. 

CO-OWNERS, 

see  Forfeitures, 
rights  in  general,  493-496. 

forfeitures  for  failure  to  contribute  to  improvement  requirements,  293-299. 
abandonment  of  claim,  306,  307. 
relocation  by,  331-333. 

application  for  patent,  verification,  352,  353. 
title  of  co-owners  applying  for  patents,  354. 
adverse  proceedings  by,  371,  372. 
protests  by,  387. 
accounting  between,  494,  495. 
surface  and  subsurface  owners,  496. 
fiduciary  relationship  of,  331,  332,  333,  note,  496. 
adverse  possession  as  between,   525. 
federal  statutory  provisions,  541. 

CORPORATIONS, 

right  to  locate  mining  claims,  171-173. 

foreign  corporations,  right  to  make  location,  172. 

verification  of  certificate  of  location,  212. 

annual  labor  on  location,  277. 

proof  of  citizenship  on  application  for  patent,  351. 

purchase  by  director  of  a  relocation  of  corporate  mining  property,  334 

335. 
application  for  patent,  verification,  352, 

CO-TENANTS, 
see  Co-owners. 

CGBUR  D'ALENE  INDIAN  LANDS, 

mining  rights,  federal  statutes,  562. 

COUNTRY  ROCK, 

definitions,  103,  125,  note. 

COURSE, 

definitions,  140. 

COURT  OF  PRIVATE  LAND  CLAIMS, 

adjudication  of   Spanish  and  Mexican  grants,  61-63. 

COURTS, 

see  Adverse  Claims  and  Proceedings, 
attitude  toward  the  miner,  29,  30. 
review  of  decisions  of  land  department,  51-54. 


728  INDEX. 

£The  figures  refer  to  pages.] 
CRADLE, 

definitions,  108. 
CREVICE, 

definitions,  182. 

CRIBBING, 

definitions,  104,  105. 

CROSS  CUT, 

definitions,    103. 

extralateral  rights  do  not  include  right  to  cross  cut,  415. 

CROSS  VEINS, 

subsurface  rights,  453-455. 
veins  crossing  on  strike,  453-455. 

CROW  INDIAN  LANDS, 

mineral  rights,  federal  statutes,  560-561. 

CUSTOMS  AND  USAGES, 
see  Miners'  Rules, 
origin  and  adoption,  1-8. 

origin  of,  history  of  rules  relating  to,  supplemental  to  statutory  regula- 
tions, 23-28. 
proof  of,  26. 
as  to  value  of  labor,  282. 

D 

DAMAGES, 

exemplary  damages  for  wrongful  taking  of  ore,  515. 
measure  of,  for  wrongful  taking  of  ore,  513-516. 

DEATH, 

of  co-owner,  effect  as  to  notice  to  contribute  to  Improvements,  294. 
of  lessor  as  terminating  optional  oil  and  gas  lease,  472. 
of  mining  partner,  491. 

DEBRIS, 

see  California  Debris  Commission;  Tailings. 

DECLARATORY  STATEMENT, 

on  application  to  enter  coal  lands  under  preference  right,   4G6. 
use  of  term  in  Montana,  212. 

DEEDS, 

see  Conveyances. 

DEEP  PLACERS, 

definitions,  109,  note,  136. 

DEFINITIONS, 

see  Words  and  Phrases. 

DELAWARE, 

mineral  lands,  exception  from  operation  of  federal  legislation,  37. 
lack  of  present  state  legislation  relating  to,  37. 

DELECTUS  PERSONS, 

see  Mining  Partnerships. 


INDKX.  T29 

[The  figures  refer  to  pages.] 
DEPARTURE  OF  VEIN, 

Subsurface  Rights. 

DEPOSITS, 

of  fees  of  surveyor  general,  346. 

DEPUTY  MINERAL  SURVEYORS, 

nppointment,  49. 
locations  by,  170,  171. 

DESCENT, 

of  unpatented  claims,  395,  note. 

DESCRIPTION, 

tying  claim  to  natural  objects  and  monuments,  190,  191,  213-?ir! 

in  notice  of  location  of  lode  claim,  209. 

in  certificate  of  location  of  lode  claim,  213-216. 

in  notice  of  location  of  placer  claim,  258,  259. 

In  certificate  of  locution  of  placer  claim,  260. 

in  application  for  patent,  350,  351. 

federal  statutory  provisions,  541,  543. 

DESCRIPTIVE  REPORT, 
see  Patents. 

DESERT  LAND  ENTRIES, 

in  general,  88. 

DIGGINGS, 

definitions,  108. 

DIKE, 

definitions,  123. 

DIP  OF  VEIN, 

see  Subsurface  Rigbts. 

location  based  solely  on  discovery  on  the  dip,  148  note,  412  note. 
definitions,  105,  140,  141. 

DIPS,  SPURS,  AND  ANGLES  CLAUSE, 

see  Conveyances. 

DISCOVERY, 

see  Discovery  Shaft 
definitions,  147-149. 

requisites  and  sufficiency  in  general,  147-166. 
as  basis  of  right,  recognition  by  miners'  rules,  5. 
lode  claims,  147-161,  176-178. 

originality  not  necessary,  14S. 

finding  float  does  not  constitute,  148. 

rock  in  place  as  necessary  element,  148. 

as  question  for  .iury,  149. 

parties  affected,  149-151. 

evidence,  150. 

priorities  between  discoverers,  152-154,  157-159,  160. 

abandonment  of,  153,  154,   159. 

discovery  shaft  distinguished  from  discovery,  154,  155. 

possession  for  purpose  of,  155-159. 

good  faith  of  discoverer,  156,  157. 


730  INDEX. 

[The  figures  refer  to  pages.] 
DISCOVERY— Continued, 

notice,  159,  160,  176-178. 

relation  to  location,  159-161. 

number  of  locations  allowed  to  discoverer,  161. 

time  for  completion  of  discovery  work,  183,   184. 
oil  and  gas,  470-474. 
placer  claims,  162-166,  247,  248. 

priority  between  discoverers  of  placer  claims,  102. 

possession  for  the  purpose  of,  164,  165. 

joint  locations,  166. 

number  of  acres  allowed,  166. 

number  of  locations  for  each  discoverer,  160. 

notice,  247,  248. 

DISCOVERY  NOTICE, 

see  Discovery;    Location. 

DISCOVERY  SHAFT, 

in  general,  178-184,  248,  249. 

reasons  for,  179. 

right  to  make  two  locations  from  one  shaft,  179,  ISO. 

relation  to  location,  180,  181. 

essentials  of,  181,  1S2. 

equivalents  of,  182,  183. 

time  to  complete,  183,  184. 

effect  of  failure  to  complete,  184. 

in  placer  claim,  248,  249. 

DISSEISIN, 

effect  of  on  recovery  for  ore  taken,  517. 

DISSEMINATIONS, 
definitions,  125. 

DISTRICT  LAND  OFFICES, 
see  Land  Office. 

DISTRICT  OF  COLUMBIA, 

mineral  lands,  exception  from  operation  of  federal  legislation,  37. 

DISTRICT  RULES, 
see  Miners'  Rules. 

DISTRICTS, 

see  Mining  Districts. 

DITCHES, 

see  Drainage;  Water  Rights. 

DOWER, 

effect  of  patent  on  right  to  claim,  398,  note. 

DOWN   CAST, 

definitions,  104. 

DRAINAGE, 

of  mines,  534,  535.     - 

DREDGING, 

definitions,  110. 


INDEX.  731 

[The  figures  refer  to  pages.] 
DRIFT  MINING, 
definitions,  109. 

DUMPS, 

definitions,  107. 

use  of  mill  sites,  227. 

for  tunnel  site  locations,  238,  239. 

hydraulic  mining,  533,  note. 

EASEMENTS, 

right  of  owner  to  maintain  adverse  proceedings,  372. 
surface  and  subsurface  rights,  496,  504-508. 
subjacent  support,  504-508. 
lateral  support,  508. 
on  severance,  502-508. 

EJECTMENT, 

by  adverse  claimant,  375,  376. 

to  recover  mining  claims  in  general,  512. 

EMINENT  DOMAIN, 

see  Condemnation. 

EMPLOYES, 

relocation  by,  334,  335. 

END  LINES, 

see  Subsurface  Rights. 
location  of  claims  in  general,  184-197. 

ENTRIES, 

see  Coal  Lands;   Desert  Land  Entries;   Patents;    Timber  and  Stone 

Lands ;    Townsites. 
cancellation  of,  286,  287,  327. 
in  patent  proceedings,  358,  359. 

EQUITY, 

relief  against  patent  wrongfully  secured,  53,  399,  400. 

suits  to  quiet  title,  375,  512. 

injunction,  517,  518. 

power  to  order  inspection  and  survey  of  mining  claims,  519,  520. 

ESTOPPEL, 

of  grantor  to  claim  extralateral  rights,  452. 

to  claim  title  acquired  after  conveyance,  501,  502. 

EVIDENCE, 

nonmineral  character  of  homestead  entry,  84,  85. 

mineral  lands  in  Indian  reservations,  91. 

discovery  of  lode  claims,  150. 

explanation  of  certificate  of  lode  claim,  215. 

lode  location  certificate  as  evidence,  220,  223. 

existence  of  known  lode  or  vein,  261-264. 

benefit  of  annual  labor  on  one  claim  for  group.  278. 

benefit  of  work  outside  of  claim,  281. 

of  forfeiture  for  failure  to  perform  annual  labor,  283,  307-309. 


732  INDEX. 

[The  figures  refer  to  pages.] 
E  VI D  ENCE— Continued, 

proof  of  annual  labor,  284-286. 

of  forfeiture  of  rights  of  co-owner,  296,  297. 

in  suit  to  set  aside  patent,  399. 

to  hold  patentee  as  trustee,  400. 

presumptions  as  to  subsurface  rights,  404-409. 

citizenship,  federal  statutory  provisions,  540. 

possessory  rights,  land  office  regulations,  579,  580. 

EXAMINATION  OF  TITLE, 
see  Mining  Claims ;  Title. 

EXAMINATIONS  IN  MINING  LAW, 
sample  questions,  683-690. 

EXCEPTIONS, 

of  known  mines  in  town-site  entries,  101. 
effect  of  unauthorized,  in  patents,  394. 

EXCESSIVE  LOCATIONS, 
lode  claims,  196-204. 
tunnel  sites,  236. 
placer  claims,  258. 

EXCUSES, 

for  failure  to  perform  annual  labor,  283,  284. 

EXEMPLARY  DAMAGES, 

see  Damages. 

EXPENDITURES, 

see  Improvement  Requirements. 

EXTRALATERAL  RIGHTS, 

see  Subsurface  Rights, 
definitions,  138. 


FACE  OF  TUNNEL, 

definitions,  104,  232,  234. 

FAHLBAND, 

definitions,  124 

FAULTING, 

definition,  106. 

FEDERAL  COURTS, 

jurisdiction  of  adverse  proceedings,  375. 

FEDERAL  STATUTES, 

see  Acts  of  Congress. 

Revised  Statutes  relating  to  mining  rights,  539-547. 
other  federal  statutes  relating  to  mining  rights,  547-564 

FEES, 

of  surveyor,  346.  582. 

proof  of,  358,  545,  575,  -679. 

excessive,  582. 

paid  to  register  and  receiver,  582. 


INDEX.  733 

[The  figures  refer  to  pages.] 
FIDUCIARIES, 

see  Co-owners ;  Tenancy  in  Common, 
relocation  by,  331-335. 

FIELD  NOTES, 

of  surveyors,  347-349. 

FILING, 

adverse  claim,  366,  367. 
application  for  patent,  355. 

FISSURE   VEINS, 

definitions,  122,  123. 

FIXTURES, 

forfeiture  of,  on  relocation,  341,  342. 

FLATHEAD  INDIAN  LANDS, 

mining  rights,  federal  statutes,  560. 

FLOAT, 

definitions,  105. 

FLOATS, 

definitions,  60. 

mining  locations  on  float  Mexican  land  grants,  64. 

FLOOR, 

definitions,  104,  105. 

FLORIDA, 

mineral  lands,  present  state  of  legislation  affecting,  37. 

FOLLOWING  LODE  ON  DIP, 

see  Extralateral  Rights. 

FOOT  WALL, 

definitions,  105. 

FOREIGN  CORPORATIONS, 

see  Corporations, 
applications  for  patents  by  sister  state,  351. 

FOREST  RESERVES, 

relation  to  mineral  lands,  92,  93. 
federal  statutes,  554,  555. 
land  office  regulations,  585. 

FORFEITURES, 

see  Relocation, 
definitions,  300-305. 

of  mining  rights  in  general,  noncoinpliance  with  rules,  27-29. 
of  railroad  land  grants,  80,  81. 
of  blind  veins  in  tunnel  site  location,  242. 
of  claims,  definitions,  300-305. 

failure  to  perform  annual  labor,  283. 

to  co-owners,  293-299. 

distinguished  from  abandonment,  300-305. 


734  INDEX. 

[The  figures  refer  to  pages.] 
FORFEITURE  S— Continued, 

burden  of  proof,  307-309. 
pleading,  308,  309. 

resumption  of  work,  288-292,  317-320. 
relocation  by  forfeiting  owners,  327-341. 
pleading  in  adverse  proceedings,  380. 
of  improvements  on  relocation,  341,  342. 

FORMS, 

adverse  claim,  681,  682. 

amended  location  certificate,  217. 

application  to  purchase  coal  lands,  596-598. 

application  for  patent  to  lode  claim,  677,  678. 

application  to  purchase  lode  claim,  679,  680. 

certificate  of  entry  of  lode  claim,  680. 

certificate  of  lode  location,  217. 

certificate  of  posting  notice  of  intention  to  apply  for  purchase  of  lode 

claim,  680. 
leases  of  Indian  land,  628-638. 

coal  and  asphalt  lands,  631-635. 

oil  and  gas  lands,  628-631. 

other  mineral  lands,  635-638. 
notice,  application  for  patent,  676. 

application  for  coal  entry,  598,  599. 

lode  discovery,  177,  178. 

lode  location,  207,  208. 

placer  discovery,  248. 

placer  location,  259. 

co-owner's  notice  to  contribute  for  improvement  requirements,  295,  296, 
proofs,  of  citizenship,  678. 

of  plat  and  notice  of  application  for  patent  remaining  posted  on  claim, 
679. 

posting  of  plat  and  notice  of  application  for  patent  to  lode  claim,  676, 
677. 

of  sums  paid  in  prosecution  of  application  for  patent,  679. 

of  publication  of  notice  of  application  for  patent,  678. 
register's  certificate,  of  posting,  680. 

of  final  entry,  680. 
protests,  681,  682. 
publisher's  contract,  for  notice  of  application  to  patent  lode  claim,  678. 

FT.  BELKNAP  LANDS, 
act  of  Congress,  555. 

FRAUD, 

ground  for  setting  aside  patent,  53,  54,  399,  400. 

FRAUDS,  STATUTE  OF, 

application  to  conveyance  of  mining  claim,  497. 
application  to  grub  stake  contracts,  481. 
application  to  ore  contracts,  489. 

FREE  MILLING  ORES, 

definitions,  107. 


INDEX.  735 

[The  figures  refer  to  pages.] 


GANGUE, 

definitions,  106. 

GANGUE  MINERALS, 

definitions,  106,  note. 

GAS,  * 

see  Oil  and  Gas  Lands. 

GEORGIA, 

mineral  lands,  exception  from  operation  of  federal  statutes  and  present 
status  of  state  legislation  affecting,  37. 

GOUGE, 

definitions,  106. 

GRANTS, 

see  Mexican  Land  Grants  ;  Railroad  Land  Grants ;   School  Land  Grants. 

GRUB  STAKES, 
definitions,  481. 
contracts,  481-483. 

H 

HANGING  WALL, 
definitions,  105. 

HAWAII, 

mineral  lands,  present  state  of  legislation  affecting,  37. 

HEADING, 

definitions,  104. 

HEIRS, 

rights  of  alien  heirs,  170. 

HISTORY, 

of  American  mining  law  in  general,  1^7. 

HOMESTEAD  ENTRIES, 
in  general,  83-87. 
federal  statutory  provisions,  546. 

HORSE, 

definitions,  106. 

HYDRAULIC  MINING, 

see  Water  Rights, 
definitions,  108,  109. 

I 
IDAHO, 

mineral  lands,  present  state  of  legislation  affecting.  37. 

IDENTITY  OF  VEIN, 

see  Subsurface  Rights. 

ILLINOIS, 

mineral  lands,  exception  from  operation  of  federal  laws,  and  present  state 
legislation,  38. 


736  INDEX. 

[The  figures  refer  to  pages.] 
IMPREGNATIONS, 

definitions,  123,  124. 

IMPROVEMENT  REQUIREMENTS, 

see  Affidavits;    Relocation;    Spanish  War  Volunteers, 
annual  labor,  271-299. 

in  tunnel  site  locations,  244. 

claims  located  prior  to  act  of  1872,  272. 

claims  located  subsequent  to  act  of  1872,  272-299. 

computation  of  time  for  performance,  273. 

power  of  states  to  regulate,  273,  274, 

purpose  of  requirements,  274. 

within  boundaries  of  claim,  275-280. 

kinds  allowed,  275-282. 

on  one  claim  for  a  group,  278-280. 

work  outside  of  claim  or  group  of  claims,  280,  281. 

work  in  tunnel,  281,  282. 

amount  required,  282,  283. 

excuses  for  failure  to  perform,  283,  284. 

certificate  in  lieu  of,  283,  284. 

prevention  of  performance,  284. 

proof  of,  284-286. 

pending  patent  proceedings,  286,  287. 

resumption  of  work,  288-292,  317-320. 

partitioned  and  divided  claims,  298,  299. 

forfeiture  for  failure  to  perform,  300-342. 
forfeiture  of  rights  of  co-owners,  293-299. 
notice  to  co-owners  failing  to  contribute,  293-296. 
forfeitures  for  failure  to  meet  requirements,  300-342. 
condition  precedent  to  application  for  patent,  343-344. 
effect  of  patent,  286,  396. 
federal  statutes  relating  to,  541,  549. 

suspension  of,  except  as  to  South  Dakota,  federal  statutes,  552,  553. 
in  Alaska,  federal  statutes,  562,  563. 

IMPROVEMENTS, 

definition,  275,  note. 

forfeiture  of,  on  relocation,  341,  342. 

as  condition  precedent  to  application  for  patent,  343,  344. 

INCLINE  DRIFT, 

definitions,  104. 
INDEMNITY  LANDS, 

grant  for  school  purposes,  65,  68-70. 

railroad  land  grants,  80,  81. 

under  forest  reserve  laws,  65,  93. 
INDIANA, 

mineral  land,  exception  from  operation  of  federal  statutes  and  present 
state  legislation  affecting,  38. 

INDIAN  LANDS, 

see  Location. 

applicability  of  federal  legislation  to  Indian  Territory,  44. 
mineral  lands  in  Indian  reservations,  89-91. 
lease  of  coal  lands,  467. 


INDEX.  737 

[The  figures  refer  to  pages.J 
INDIAN  LANDS—  Continued, 

mining  claims  on,  federal  statutes,  558-562. 

Interior  Department,  instructions  as  to  leasing  mineral  lands,  618-640. 
INDIAN   TERRITORY, 

see  Oklahoma. 

mineral  lands  and  mining  operations,  applicability  and  operation  of  fed- 
eral legislation  relating  to,  44. 

INFANTS, 

see  Minors. 

INHERITANCE, 
see  Descent 

INJUNCTION, 

relief  against  interference  with  mining  rights,  517,  518. 
restraining  injuries  from  drainage,  534. 
restraining  pollution  of  water,  532-534. 

IN  PLACE, 

see  Railroad  Land  Grants;    Rock  in  Tlnce:    S  hool  Land  Grants. 
INSPECTION, 

of  mines  and  mining  claims  under  order  of  court,  519,  520. 

INTERIOR  DEPARTMENT, 
see  Land  Office. 

instructions  as  to  coal  lands.  010-014. 

regulations  for  the  leasing  of  Indian  mineral  lands,  618-640. 
INTERVENTION, 

in  adverse  suit,  380. 

INTRALIMITAL  RIGHTS, 

see  Subsurface  Rights, 
definitions,  404, 

IOWA, 

mineral  land,  exception  from  operation  of  federal  statutes  and  present 
state  of  legislation  affecting,  38. 

IRRIGATION, 

see  Water  Rights. 

J 

JACKSONVILLE  MIXING  CAMP, 
miners'  regulations,  3,  4. 

JOINT  LOCATIONS, 
see  Discovery. 

JUDGMENT, 

adverse  proceeding  by  judgment  creditor,  372. 

in  adverse  proceedings,  382,  383. 

copy  of  judgment  roll  of  adverse  suit  filed  in  land  office,  385. 

as  lien  on  mining  claim,  509. 

JUDICIAL  APEX, 

definitions,  450,  451. 
subsurface  rights,  434-436. 

COST.MIN.L.— 47 


738  INDEX. 

[The  figures  refer  to  pages.] 
JUNIOR  LOCATIONS, 

rights  as  against  relocation  by  third  persons,  152-154,  222,  311-313,  38S- 
390. 

JURISDICTION, 

of  adverse  proceedings,  374,  375. 

of  applications  for  patent,  350-352,  356,  357. 
JURY, 

right  to  jury  trial  in  adverse  proceedings,  375,  376. 

view  by,  under  order  of  court,  520. 


tr 

KANSAS, 

mineral  lands  and  mining  operations,  present  state  of  legislation  affecting, 

38. 
exception  from  operation  of  federal  mining  laws,  548. 

KENTUCKY, 

mineral  lands  and  mining  operations,  exception  from  operation  of  federal 
statutes  and  present  state  of  legislation  affecting,  38. 

KIOWA  INDIAN  LANDS, 

mineral  rights,  federal  statutes,  558. 

KNOWN  LODES, 

see  Lode  Claims;    Patents;    Placer  Claims, 
definitions,  260-264. 

KNOWN  MINES, 
definitions,  101. 

KNOWN  VEINS, 

see  Known  Lodes. 

L 

LABOR, 

see  Improvement  Requirements. 

LAGGING, 

definitions,  105. 

LAND  DEPARTMENT, 
see  Land  Office. 

LAND  GRANTS, 

see   Mexican   Land    Grants;    Railroad   Land    Grants;    School    Land 

Grants, 
relation  to  mineral  lands,  59-82. 

LAND  OFFICE, 

see  Commissioner  of  the  General  Land  Office;   Courts;   Receivers; 

Registers ;    Secretary  of  the  Interior ;    Surveys. 
in  general,  48-58. 

attitude  of  the  courts  towards,  50-54. 
location  of  local  offices,  58. 

attitude  toward  courts  in  adverse  proceedings.  383-385. 
rules  and  regulations,  mining  and  mineral  lauds  in  general,  565-592. 

coal  lands,  593-614. 

timber  and  stone  lands,  615-617. 


INDEX.  739 

[The  figures  refer  to  pages.] 
LATERAL  DRIFTS, 
definitions,  104. 

LATERAL  SUPPORT, 

t  of  severance  of  title  us  between  surface  and  subsurface  rights,  508. 

LEASES, 

see  Coal  Lands;    Forms, 
mining  leases,  484-487. 

relocation  by  lessee,  334. 

coal  lands  of  Indians,  467. 

abandonment,  486. 

coupled  with  options  or  title  bonds,  487,  488. 

Indian  lands,  federal  statutes,  558. 

Interior  Department  regulations,  61&-640. 
oil  and  gas  leases,  470-480. 

LEVELS, 

definitions,  104. 

LICENSES, 

oil  and  gas  licenses,  472-476. 

mining  licenses  in  general,  484-487. 

right  of  licensee  to  recover  for  taking  of  ore  by  trespasser,  515,  516. 

right  of  licensee  to  injunction,  518,  note. 

LIENS, 

see  Mechanics'  Liens. 

adverse  proceedings  by  lien  claimants,  372,  373. 
on  mining  claims,  509,  510. 

LIEU  LANDS, 

grants  for  school  purposes,  65,  68-70. 
railroad  land  grants,  80,  81. 
under  forest  reserve  laws,  65,  93. 

LIFTS,  ' 

definitions,   104. 

LIMITATIONS  OF  ACTIONS, 

see  Adverse  Possession, 
mining  remedies  in  general,  523-525. 
effect  of  patent,  398,  524. 
to  set  aside  patent,  399. 

LINE  OF  TUNNEL, 

definitions,  232,  234,  235. 

LINES  OF  TUNNEL, 
definitions,  235,  236. 

LOCATION, 

history  of  legislation  relating  to,  14-21. 

definitions,  142,   143,  175,  176. 

on  surveyed  and  unsurveyed  land,  57. 

on  Mexican  land  grants,  63,  64. 

on  school  land  grants,  67.  70,  71. 

on  railroad  land  grants,  79,  SO. 


740  INDEX. 

[The  figures  refer  to  pages.] 
LOCATION — Continued, 

on  homestead  entries,  84-87. 

on  timber  or  stone  entries,  87,  88. 

on  desert  land  entries,  SS. 

on  Indian  reservations,  89-91. 

on  military  reservations,  91,  92. 

on  parks  and  forest  reserves,  92,  93. 

on  reservoir  sites,  94. 

on  townsite  entries,  96,  102. 

relation  to  discovery,  159-161. 

lode  claims,  159-161,  175-224. 

time  for  after  discovery,  159,  160. 

relation  to  discovery,  159-161. 

number  allowed  to  each  discoverer,  161. 

discovery  notice,  176-178. 

discovery  shaft,  178-183. 

equivalents  of  discovery  shaft,  182,  183. 

time  for  completion  of  discovery  work,  183,  184, 

marking  on  the  ground,  184-196. 

time  for  marking  boundaries,  191,  192. 

excessive    locations,    196-204. 

changing  boundaries,  204,  205. 

notices  of  location,  posting,  205-210. 

recording,  211-224. 

within  placer  claims,  260-269. 
placer  claims  in  general,  245-269. 

on  surveyed  and  unsurveyed  land.  57,  252-254. 

number  of  locations  for  each  discoverer,  166. 

number  of  acres  for  each  discovery,  166. 

joint  locations,  166,  254. 

by  corporations,  172,  173. 

oil  lands,  245,  246. 

salt  lands,  246. 

stone  lands,  246. 

building  stone  lands,  246. 

notice  of  discovery,  247. 

discovery  work,  248,  249. 

marking  location  on  ground,  249-258. 

excessive  location,  258. 

notice  of  location,  258,  259. 

record  of  location  certificate,  259,  260. 

amended  certificate,  260. 
persons  entitled  to  locate  claims,  167-174. 

aliens,  167-170. 

land  office  employe's,  170,  171. 

corporations,  171-173. 

minors,  173. 

agents,  173,  174. 
mill  sites,  225-231. 
tunnel  sites,  232-244.  . 

notice,  232,  233. 

marking  lines,  235,  236 

excessiveness,  236. 


INDEX.  741 

[The  figures  refer  to  pages.] 
LOCATION— Continued, 
dumps,  238,  239. 
blind  veins,  239-242. 

right  of  way  through  other  claims,  243,  244. 
annual  labor,  244. 
advantage  of  patent,  395-398. 
federal  statutory  provisions,  539-541. 
miners'  rules,  541. 

LODE, 

see  Known  Lodes;    Lode  Claims;    Subsurface  Rights, 
definitions,  105,  117,  122-135. 

LODE  CLAIMS; 

see  Abandonment;  Adverse  Claims  and  Proceedings:  Discovery ;  Dis- 
covery Shaft;  Forfeitures;  Improvement  Requirements;  Location; 
Patents;  Relocation;  Subsurface  Rights, 
history  of  legislation  relating  to  lode  mining,  14-21. 
definitions,  122>-135,  260-264. 
distinguished  from  placer  claims,  135-137. 
mill  sites,  225-231. 
known  lodes,  definition,  260-264. 

in  placer  claims,  effect  of  patent,  363,  364,  399. 
applications  for  patents,  345-359,  363,  364. 
survey  requirements,  345-349. 

application,  345,  346. 

deposit  of  fees,  346. 

order,  346,  347. 

approval,  347-349. 

field  notes,  347-349. 

plats,  348,  349. 

surveyor  general's  certificate,  348,  349. 
application  papers,  349-359. 

notice  of  application,  349,  350. 

the  application,  350,  351. 

verification,  351-353. 

proof  of  citizenship,  351-353. 

publishers'  agreement,  353. 

title  based  on  adverse  possession,  354,  355. 

abstract  of  title,  354. 

filing,  355. 

publication  of  notice,  356. 

proof  of  publication  and  of  posting,  358. 

proof  of  fees  paid,  358. 

the  application  to  purchase,  358. 

transfer  pending  application,  359. 

death  of  applicant,  359. 

entry,  358. 

forms,  676-678. 

lodes  within  placers,  363,  304. 
land  office  regulations,  570-576. 
length  of,  federal  statutory  provisions.  n.°,0.  540. 
subsurface  rishts.  federal  statutory  provisions,  540,  545. 
description,  federal  statutory  provisions,  543. 


7-12  INDEX. 

[The  figures  refer  to  pages.] 
LODE  CLAIMS— Continued, 

expenditures  on  tunnel  considered  as  being  on  lode,  federal  statutory  pro- 
visions, 548. 

land  office  rules  and  regulations,  565-567,  570-576. 
forms  used  in  proceedings  to  obtain  patent,  676-682. 
notice  of  application  for  patent,  676. 
application  for  patent,  677,  678. 
proof  of  citizenship  of  claimant,  678. 

proof  of  publication  of  notice  of  application  for  patent,  678. 
contract  for  publishing  notice  of  application  for  patent,  678. 
proof  of  posting  notice  of  application  for  patent  on  claim,  676. 
proof  that  notice  and  plat  remained  posted,  679. 
proof  of  sums  paid,  679. 
application  to  purchase,  679,  680. 

certificate  of  posting  notice  and  plat  in  land  office,  6SO. 
certificate  of  entry,  680. 
adverse  claim,  681,  682. 
protest,  681,  682. 

LOUISIANA, 

mineral  lands,  applicability  of  federal  laws,  and  present  state  of  legisla- 
tion affecting,  38. 

M 

MAINE, 

mineral  lands,  exception  from  operation  of  federal  laws  and  present  state 
of  legislation  relating  to,  38,  39. 

MANHOLE, 

definitions,  104. 

MAPS, 

see  Plats. 
accompanying  application  for  patent,  348,  349,  355. 

MARKING  LOCATION, 

see  Boundaries;    Location. 

MARYLAND, 

mineral  lands,  exception  from  operation  of  federal  laws  and  present  state 
of  legislation  relating  to,  39. 

MASSACHUSETTS, 

mineral  lands  and  mining  operations,  exception  from  operation  of  federal 
laws  and  present  state  of  legislation  relating  to,  39. 

MEASURE  OF  DAMAGES, 
see  Damages. 

MECHANICS'  LIENS, 

on  mining  claims,  509,  510. 

MEETINGS, 

miners'  meetings,  3-8. 

MEXICAN  LAND  GRANTS, 

history  and  general  statement  of,  59-64. 
conflicting  railroad  grants,  76. 


INDEX.  T4.> 

[The  figures  refer  to  pages.] 
MICHIGAN, 

mineral  lands  and  mining  operations,  present  state  of  legislation  relating 

to,  oi>. 

exception  from  operation  of  federal  mining  laws,  547. 
MILITARY  RESERVATIONS, 

relation  to  mining  locations,  91,  92. 

MILL  HOLES, 

definitions,  104. 

MILL  RUN, 

definitions,  108,  note. 
MILL  SITES, 

see  Adverse  Claims  and  Proceedings ;   Dumps  ;   Location  ;    Subsurface 
Rights. 

in  general,  225-231. 

patents,  360,  3.61. 

federal  statutory  provisions,  545. 

land  office  regulations,  577,  578. 
MINE, 

definitions,  143-146. 
MINERAL, 

construction  of  the  word  "mineral"  as  used  in  statutes,  30,  121. 

definitions,  111-121. 

land  department  rulings,  119,  120. 

what  constitutes,  under  placer  claim  laws,  245,  246. 

MINERAL  LANDS, 
definitions,  111-121. 
building  stone  land,  67,  246. 
oil  lands,  245,  246. 
salt  lands,  246. 

reservation  of,  in  Mexican  land  grants,  62,  63. 
reservation  of,  in  state  school  land  grants,  65-70. 
reservation  of,  in  railroad  land  grants,  75-81. 
granite  quarries  as  mineral  lands,  79. 

proof  of  mineral  characteristics  in  homestead  entries,  84,  85. 
proof  of  mineral  characteristics  in  Indian  reservation,  91. 
effect  of  surveyor  general's  return,  56,  57. 
land  office  regulations  as  to  determination  of  mineral  character,  583,  584. 

MINERAL  SURVEYORS, 

see  Deputy  Mineral  Surveyors. 

MINERS'  RULES, 

origin  and  adoption,  1-8. 

prcof  of,  26. 

rules  supplemental  to  statutory  regulations,  23-29. 

construction  by  courts,  29.  30. 

federal  statutory  provisions,  541. 

MINING  CLAIM,  • 

see  Location, 
definitions,  142,  143. 
as  property,  395,  note. 


744  INDEX. 

[The  figures  refer  to  pages.] 
MINING  CLAIM— Continued, 
conveyances,  497-511. 

character  of  property  rights  in,  as  affecting,  497,  498. 
examinations  of  title,  510,  511. 
mortgages  of,  509. 
liens  on,  509,  510. 

MINING  CONTRACTS, 
in  general,  481-489. 

MINING  DISTRICTS, 
definitions  of,  24. 

origin  and  history  of  rules  relating  to,  supplemental  to  statutory  regula- 
tions, 23-28. 

MINING  LEASES, 

see  Coal  Lands;    Leases. 

MINING  LICENSES, 
see  Licenses. 

MINING  PARTNERSHIPS, 
in  general,  490-493. 
definitions,  490. 
relocation  by  partner,  335. 
grub  stake  contracts  distinguished,  481,  482. 
working  contracts  distinguished,  488. 
authority  of  partners,  492. 
tenancies  in  common  distinguished,  493. 
distinguished  from  ordinary  partnerships,  491-493. 
doctrine  of  delectus  personae  inapplicable.  491,  492. 

MINNESOTA, 

mineral  lands  and  mining  operations,   federal   and  state  legislation  af- 
fecting, 40,  547. 

MINORS, 

right  to  locate)  mining  claims,  173. 

MISSISSIPPI, 

mineral  lands  and  mining  operations,  applicability  of  federal  laws  and 
present  state  of  legislation  relating  to,  40. 

MISSOURI, 

mineral  lands  and  mining  operations,  present  state  of  legislation  affecting, 

41. 
exception  from  operation  of  federal  mining  laws,  548. 

MONTANA, 

mineral  lands  and  mining  operations,  applicability  of  federal  laws  and 
present  state  of  legislation  relating  to,  41. 

MONUMENTS, 

see  Boundaries. 

adopting,  in  making  relocation,  194,  195,  314. 
marking  location  of  lode  claims,  188-190.  314. 
marking  location  of  placer  claims,  249-258. 

MORTGAGES, 

,  adverse  proceedings  by  mortgagee,  371,  372. 
of  mining  claims  in  general,  509. 


INDEX.  745 

[The  figures  refer  to  pages.] 

NAMES, 

amendment  as  to,  222-224. 
patents,  359. 

NATIONAL  PARKS, 

relation  to  mineral  lands,  92. 
NEBRASKA, 

mineral  lands  and  mining  operations,  applicability  of  federal  laws  and 

present  state  of  legislation  relating  to,  41. 
NEVADA, 

mineral  land's  and  mining  operations,  applicability  of  federal   lav.-s  and 

present  state  of  legislation  relating  to,  41. 
locations  on  state  lands,  67. 
adjudication  of  Mexican  land  grants  in,  61-63. 

NEW  HAMPSHIRE, 

mineral  lands  and  mining  operations,  exception  from  operation  of  federal 
laws  and  present  state  of  legislation  relating  to,  42. 

NEW  JERSEY, 

mineral  lands  and  mining  operations,  exception  from  operation  of  federal 
laws  and  present  state  of  legislation  affecting,  42. 

NEW  MEXICO, 

mineral  lands  and  mining  operations,  applicability  of  federal  laws  and 

state  of  legislation  relating  to,  42. 
adjudication  of  Mexican  land  grants  in,  61-63. 

NEWSPAPERS, 

see  Publication. 

publishers'  agreements  on  application  for  patent,  353. 
form  of  publisher's  contract  on  application  to  patent  lode  claim.  678. 
form  of  proof  of  publication  of  notice  of  application  for  patent,  678. 

NEW  YORK, 

mineral  lands  and  mining  operations,  exception  from  operation  of  federal 

laws  and  present  state  of  legislation  relating  to,  42. 
prerogative  rights,  13. 

NONSUIT, 

in  adverse  proceedings,  381. 

NORTH  CAROLINA, 

mineral  lands  and  mining  operations,  exception  from  operation  of  feder- 
al laws  and  present  state  of  legislation  relating  to,  43. 

NORTH  DAKOTA, 

mineral  lands  and  mining  operations,  applicability  of  federal  laws  and 

present  state  of  legislation  affecting,  43. 
NORTHERN  PACIFIC  RAILROAD, 
see  Railroad  Land  Grants. 

NOTICE. 

see  Forms :    Location. 

claim   of  mineral   characteristics  defeating  railroad  grants,  80. 
discovery  as  element  of  location,  176-178,  247,  248. 


746  INDEX. 

[The  figures  refer  to  pages.] 
NOTICE— Continued, 

lode  Claims,  posting  notices,  205-210. 

placer  claims,  posting  notices,  258,  259. 

tunnel  site  location,  232,  233. 
blind  veins,  240. 

failure  of  co-owner  to  contribute  to  improvement  requirements,  293-296. 

application  for  patent,  349,  350. 

publication  of  notice  of  application  for  patent,  356. 

proof  of  publication  of  application  for  patent,  358. 

application  for  coal  land  entry,  4G3,  464,  466. 

application  for  entry  of  timber  and  stone  lands,  468. 

appropriation  of  water  rights,  528,  529. 

application  for  patent  to  lode  claim,  form,  676. 

application  for  patent,  form  of  publisher's  contract,  678. 

of  intention  to  apply  for  patent,  form  of  proof  of  posting,  680. 

0 

OHIO, 

mineral  lands  and  mining  operations,  applicability  and  operation  of  fed- 
eral laws  and  present  state  of  legislation  relating  to,  43. 

OIL  AND  GAS  LANDS, 

discovery  of,  162-164. 

possession  to  support  discovery  of,  164,  165. 
location  of,  245,  246. 
leases.  470-480. 

waste  of  oil  or  gas.  471,  rote, 
federal  statutes,  553,  554,  559. 
entry  of  oil  lands,  federal  statutes,  553,  554. 
annual  labor  on  oil  lands,  federal  statutes,  559. 
Indian  lands,  Interior  Department  regulations,  618-631. 
OKLAHOMA, 

mineral  lands  and  mining  operations,  applicability  of  federal  laws  and 
present  state  of  legislation  relating  to,  43,  44. 

OPEN  CUT, 

definitions,  104. 

OPTIONS, 

oil  and  gas  leases,  472. 

coupled  with  mining  leases,  487. 
ORE, 

definitions,  106,  note. 

ORE  CHANNELS, 

definitions,  124,  125. 

ORE  CONTRACTS, 
in  general,  489. 

OREGON, 

mineral  lands  and  mining  operations,  federal  laws  and  present  state  of 
legislation  relating  to,  44. 

OUTCROP, 

definitions,  105. 


INDEX.  74' 

[The  figures  refer  to  pages.] 
OVERHAND  STOPING, 
definitions,  104. 


PANNING, 

definitions,  108. 

PARALLELISM  OF  END  LINES, 

see  Subsurface  Rights. 

PARKS, 

see  Location;    Natural  Parks. 

PARTIES, 

see  Discovery, 
to  adverse  proceedings,  377-380. 

PARTITION, 

of  mining  property,  521,  522. 

PARTITIONED  CLAIMS, 

right  of  co-owners,  298,  299. 

PARTNERSHIPS. 

see  Mining  Partnerships. 

PATENTS, 

see  Adverse  Claims  and  Proceedings ;    Forms ;    Protest, 
history  of  legislation  relating  to,  14r-21. 
definitions,  392. 

authority  of  court  to  set  aside,  53,  399,  400. 
effect  as  to  lands  included  in  Mexican  grants,  61-64. 
right  to  make  mining  location  before  and  after  patent,  homestead  entries, 

84-87. 

timber  and  stone  entries,  87,  88. 
desert  entries,  88. 
townsite  entries,  99-102. 
effect  on  excessive  location,  204,  397. 

annual  labor  requirements  pending  patent  proceedings,  286,  287. 
no  annual  labor   requirement  after  patent,  286,  396. 
application,  as  affecting  right  to  relocation,  326,  327. 

improvement  requirements  as  condition  precedent,  343,  344. 
uncontested,  343-365. 
inclusion  of  more  than  one  claim,  344. 
lode  claims,  345-359. 

survey  requirements,  345-349. 
application,  345,  346. 
deposit  of  fees,  346. 
order,  346,  347. 
approval,  347-349. 
field  notes,  347-349. 
plats,  348,  349. 

surveyor  general's  certificate,  348,  349. 
application  papers,  349-359. 

notice  of  application,  349,  350. 
the  application,  350,  351. 


V4S  INDEX. 

[The  figures  refer  to  pages.] 
PATENTS— Continued, 

verification,  351-353. 
proof  of  citizenship,  351-353. 
publishers'  agreement,  353. 
title  based  on  adverse  possession,  354,  355. 
abstract  of  title,  354. 
filing,  355. 

publication  of  notice,  356. 
proof  of  publication  and  of  posting,  358. 
proof  of  fees  paid,  358. 
the  application  to  purchase,  358. 
transfer  pending  application,  359. 
death  of  applicant,  359. 
entry,  358. 

lodes  within  placers,  363,  364. 
federal  statutory  provisions,  541-545. 
land  office  regulations,  570-576. 
forms  used  in  proceedings  to  procure,  677-682. 
millsites,  360,  361. 

federal  statutory  provisions,  545. 
land  office  regulations,  577,  578. 
placer  claims,  361-365. 

descriptive  reports  of  mineral  surveyors,  362. 
effect  on  right  to  known  lodes,  260-267,  363,  364,  399. 
federal  statutory  provisions,  541-545. 
land  office  regulations,  576,  577. 
collateral  attack,  392,  393. 
collusiveness,  392-394. 
nature  of,  52,  note,  392-394 
advantages  of,  395-398. 
direct  attack  on,  399,  400. 
application  of  doctrine  of  relation,  401,  402. 
effect  on  right  to  mortgage  claim,  509. 

examination  of  title  of  patented  and  unpatented  claims,  r"\  511. 
effect  on  liens,  510. 
effect  on  water  rights,  527,  528. 
federal  statutory  provisions,  539-564. 
land  office  regulations,  570-579. 

PAY  STREAK, 

definitions,  107. 

PEDIS  POSSESSIO, 
definitions,  156. 
lode  claims,  155-159. 
placer  claims,  164,  165. 

PENNSYLVANIA, 

mineral  lands  and  mining  operations,  exception  from  operation  of  federal 
laws  and  present  state  of  legislation  relating  to,  44. 

PERSONAL  INJURIES, 
actions  for,  523. 

PETROLEUM, 

see  Oil  and  Gas  Lands. 


INDEX.  749 

[The  figures  refer  to  pages.] 
PHILIPPINE  ISLANDS, 

mining  law,  status  of,  44. 
mining  laws,  641-663. 

PINCH, 

definitions,  106. 

PLACER, 

definitions,  122,  135-137,  245. 

PLACER  CLAIMS, 

see  Abandonment;  Adverse  Claims  and  Proceedings;  Discovery;  Dis- 
covery Shaft ;    Forfeitures  ;    Improvement  Requirements ;   Location  ; 
Oil  and  Gas  Lands;    Patents;    Subsurface  Rights;    Water  Rights, 
definitions,  122,  135-137,  245. 
discovery  of,  162-166. 
location  of,  in  general,  245-269. 
patents,  361-365. 

federal  statutory  provisions,  541-545. 

land  office  regulations,  576,  577. 
known  lodes  in  placer  claims,  effect  of  patent,  200  267,  363,  3G4,  399. 

examination  for,  on  conveyance,  511. 
oil  lands,  entry  of,  245,  246. 
salt  lands,  entry  of,  246. 

entry  of,  federal  statutory  provisions,  543,  544. 
building  stone  entries.  246. 

federal  statutes,  552. 
land  office  regulations,  576,  577. 

PLACER  MINING, 

history  of  legislation  relating  to,  14-21. 

PLATS, 

accompanying  applications  for  patent,  348,  349,  355. 
accompanying  adverse  claims,  368. 
of  surveys  for  patents,  347-349. 

PLEADING, 

see  Abandonment, 
in  adverse  proceedings,  377-380. 

POCKET, 

definitions,  106. 

POLLUTION, 

of  water,  531-534. 

PORTO  RICO, 

mineral  lands  and  mining  operations,  lack  of  legislation  relating  to,  45. 

POSSESSION, 

see  Pedis  Possessio. 

to  support  discovery  of  lode  claim,  155-159. 
to  support  discovery  of  placer  claim,  164-166. 

POSSESSORY  ACTIONS, 

mining  remedies  in  general,  512-516. 
federal  statutory  provisions,  539. 


730  INDEX. 

[The  figures  refer  to  pages.] 
POSSESSORY  RIGHTS, 

see  Adverse  Possession;    Patents, 
application  for  patent  based  on,  354,  355. 
land  office  regulations,  579,  580. 

POSTING, 

notice  of  location,  of  lode  claim,  205-210. 

of  placer  claim,  259. 
notice  of  application  for  patent,  350,  358. 

form,  676,  677. 

notice  of  application  for  entry  of  coal  lands,  464,  406. 
notice  of  application  for  entry  of  timber  and  stone  lands,  468. 

POSTS, 

marking  location  of  lode  claims,  18&-196. 

PREFERENCE  RIGHT, 

what  constitutes,  465,  note. 

to  enter  coal  lands,  465,  466. 

federal  statutes,  593,  594. 
PREMATURE  RELOCATION, 

in  general,  321-327. 
PREROGATIVE   RIGHTS, 

in  mining  property,  9-13. 

PRINCIPAL  AND  AGENT, 

right  to  locate  mining  claims,  173,  174. 
ratification  of  acts  of  agent,  174. 
verification  of  certificate  of  location,  212. 
relocation  by  agent,  334,  335. 

verification  of  application  for  patent,  by  agent  for  principal,  352. 
application  for  patent  by  agent,  federal  statutes  relating  to,  549. 
verification  of  adverse  claim  by  agent,  368. 
federal  statutory  requirements,  550. 

PRIORITIES, 

see  Discovery;    Junior  Locations;   Relocation;    Subsurface  Rights. 
as  to  discoveries  of  lode  claims,  150.  160. 
as  to  discoveries  of  placer  claims,  150,  165. 
lode  locations,  effect  of  record,  219. 

senior  and  junior  locators,  effect  of  resumption  of  work,  289,  290. 
determination  of,  on  protest,  388-390. 
between  water  rights,  529,  530. 

PROOF  OF  PUBLICATION, 

see  Publication. 

PROSPECTING, 

definitions,  105. 
contracts,  481-483. 

PROSPECTING  PAN, 

definitions,  108. 

PROTEST, 

definition,  366. 

as  to  classification  of -land  by  land  department,  81,  82. 

against  patent  applications,  386-391. 


INDEX.  751 

[The  figures  refer  to  pages.] 
PROTE  ST— Continued, 

persons  entitled,  386,  387. 

not  allowed,  where  adverse  proper,  3SS-391. 

form,  681,  682. 

PUBLICATION, 

publisher's  agreement  in  patent  proceedings,  353. 
of  notice  of  application  for  patent,  350. 
proof  of,  358. 
form  of  proof,  678. 

of  notice  of  application  for  entry  of  coal  lands,  464.  466. 
of  notice  of  application  for  entry  of  timber  and  stone  lands,  468. 
of  notice  of  forfeiture  for  failure  of  co-owner  to  contribute  to  improve- 
ment, 293-296. 

PUBLIC  LANDS, 

see  Surveys, 
federal  statutes  relating  to  entry  of,  539-564. 

PUBLIC  USE, 

see  Condemnation. 

Q 

QUESTIONS  FOR  JURY, 

see  Abandonment ;  Adverse  Claims  and  Proceedings ;   Discovery ;    Subsur- 
face Rights. 

QUIETING  TITLE, 

by  adverse  claimant,  375.  376. 
to  mining  claim  in  general,  512. 

QUITCLAIM  DEEDS, 
see  Conveyances. 

R 

RAILROAD  LAND  GRANTS, 

in  general,  71-82. 

rights  of  way,  72-74. 

Northern  Pacific  Railroad,  75,  76. 

in  place  or  designated  sections,  75-80. 

lieu  or  indemnity  lands,  80.  81. 

classification  of  railroad  lauds,  81,  82. 

right  of  railroad  to  maintain  adverse  proceedings,  372. 

RAISE, 

definitions,  104. 

RATIFICATION, 

see  Principal  and  Agent 

RECEIVERS, 

in  land  offices,  49,  50. 
of  mining  property,  520. 

RE-CORDS, 

mining  district,  25-27. 

location  papers  of  lode  claims,  210-223. 


INDEX. 

[The  figures  refer  to  pages.] 
RECORDS— Continued, 

notice  of  location,  210. 
location  certificate,  212,  216-218. 

amendment,  210,  221-224,  335-341. 
notice  of  location  of  placer  claim,  259,  260. 
notice  of  forfeiture  of  rights  of  co-owner,  298. 
failure  to  record  as  giving  right  to  relocation,  325,  326. 

REESE  RIVER  DISTRICT, 
miners'  regulations,  16. 

REFRACTORY  ORES, 
definitions,  107. 

REGISTERS, 

in  land  offices,  49,  50. 

REGULATIONS, 

see  Rules. 

RELATION, 

application  of  doctrine,  to  relocation  by  amendment,  223,  337-341. 
to  water  rights,  528,  529. 
to  discovery  and  the  acts  of  location,  1GO. 
to  patents,  401,  402. 

RELOCATION. 

see  Forfeitures;    Junior  Locations, 
failure  to  do  discovery  work,  184. 
changing  boundaries  of  lode  claims,  204,  205. 
right  of  former  locator  on  resumption  of  work  after  a  relocation  becomes 

forfeitable,  288,  289. 
kinds  of,  309,  310. 

abandonment  or  forfeiture  as  condition  precedent,  309,  310. 
of  claims  in  general,  309-341. 
by  third  persons,  310-327. 

rights  of  prior  junior  locators,  152-154,  222,  311-313,  388-390. 
acts  constituting,  314-317. 
new  discovery  not  necessary,  314. 
time  for  performance  of  acts  of,  315. 
notice,  315,  316. 

resumption  of  work  by  prior  locator,  288-292,  317-320. 
trespass  in  making,  317-320. 
premature  relocation,  321-327. 

record  of  original  location,  failure  to  make,  325,  326. 
patent,  application  for,  as  affecting,  286,  287,  320,  327. 
by  forfeiting  owners,  327-341. 
by  co-tenant,  331-333. 

by  fiduciaries  other  than  co-tenants,  333-335. 
by  amendment,  335-341. 

relation  back  on  amendment  of  certificate  of  location,  223,  337-341, 
acts  accompanying  relocation  by  amendment,  341. 
forfeiture  of  improvements,  341,  342. 
pleading  in  adverse  proceedings,  380. 
protest,  effect,  388-391. 


INDEX.  753 

[The  figures  refer  to  pages.] 
REPLEVIN, 

of  minerals  wrongfully  removed,  516,  517. 
REPORTS, 

descriptive,  of  mineral  surveyors  of  placer  claims,  3G2. 
RESERVATIONS, 

see  Forest  Reserves;    Indian  Lands;    Location;    Military   Reserva- 
tions, 
of  mineral  lands,  railroad  grants,  72-81. 

Mexican  land  grants,  62,  63. 

state  land  grants,  66. 

townsite  patents,  101. 

federal  statutory  provisions,  539. 
public  land  reservations,  89-94. 
effect  of  unauthorized,  in  patents,  394. 
in  patents,  for  rights  of  way,  federal  statutes  relating  to,  551. 

RESERVOIRS, 

relation  of  reservoir  sites  to  mineral  lands,  94. 

duties  of  owners,  534,  535. 

selection  of  sites  for,  federal  statutes,  552. 

RESUMPTION  OF  WORK, 

see  Forfeitures;    Improvement  Requirements;    Relocation. 
definitions,  291,  292. 
effect  in  general,  288-292,  317-320. 

REVISED  STATUTES  OF  THE  UNITED  STATES, 

relating  to  mining  rights,  539-547. 
rule  of  statutory  construction,  20,  21. 

REVOCATION, 

of  oil  or  gas  lease,  472,  475. 

RHODE  ISLAND, 

mineral  lauds  and  mining  operations,  exception  from  operation  of  federal 
laws  and  present  state  of  legislation  relating  to,  45. 

RIFFLES, 

definitions,  109. 

RIGHT  OF  WAY, 

see  Condemnation ;    Railroads, 
tunnel  site  locations,  243,  244. 

ROCKER, 

definitions,  108. 

ROCK  IN  PLACE, 

definitions,  132-135. 

ROOF, 

definitions,  104,  106. 

RULES, 

see  Miners'  Rules, 
land  office  rules,  565-592. 

CosT.MiN.L.— 48 


754  INDEX. 

[The  figures  refer  to  pages.] 

s 

SALES, 

by  mining  partners,  491. 

SALINE  LANDS, 

location  of,  as  placers,  247. 
location  of,  federal  statutes,  558. 
land  office  regulations,  570. 

SALT  LANDS, 

see  Saline  Lands, 
SAMPLE  ASSAY, 

definitions,  108,  note. 

SAN  CARLOS  LANDS, 
act  of  Congress,  555. 

SCHOOL  LAND  GRANTS, 

in  general,  64-71. 

in  place  or  designated  sections,  64,  65. 

lieu  or  indemnity  lands,  65-70. 

mineral  lands  in,  66,  67. 

when  title  passes,  68. 

SECRETARY  OF  THE  INTERIOR, 

as  head  of  land  department,  48. 
SELVAGE, 

definitions,  106. 
SET  WORK, 

definitions,  105. 

SEVERANCE, 

see  Easements. 
SHAFT, 

definitions,  103. 

discovery  shaft  as  element  of  location,  178-183. 
SHOSHONE  INDIAN  LANDS, 

mining  rights,  federal  statutes,  561,  562. 
SIDE  LINES, 

see  Subsurface  Rights. 
SIZE  OF  CLAIMS, 

see  Excessive  Locations. 
SLUICE   BOX, 

definitions,  109,  note. 
SMELTING, 

definitions,  107,  note. 
SOLE, 

definitions,  104. 
SORTING  ORE, 

definitions,  107. 
SOUTH  CAROLINA, 

mineral  lands  and  mining  operations,  exception  from  operation  of  federal 
legislation,  45. 


INDEX.  755 

[The  figures  refer  to  pages.] 
SOUTH   DAKOTA, 

mineral  lauds  and  mining  operations,  application  and  operation  of  federal 

and  state  legislation  relating  to,  45. 

suspension  of  improvement  requirements,  federal  statutes,  552,  553. 
SOVEREIGNTY, 

rights  as  between  the  United  States  and  the  several  states,  9-14. 
prerogative  rights,  11,  12. 

SPACE  OF  INTERSECTION, 

what  constitutes,  453,  454. 
SPANISH  WAR  VOLUNTEERS, 

exemption  from  assessment  work,  283. 

SPUR, 

definitions,  106. 

STATE  COURTS, 

jurisdiction  of  adverse  proceedings,  375. 
STATE  SCHOOL  LANDS, 

see  School  Land  Grants. 

STATES, 

sovereignty  over  mining  property,  9-14. 

history  of  state  legislation  relating  to  mining  rights  supplemental  to  fed- 
eral legislation,  21-23. 

enumeration  of  states  to  which  American  mining  law  is  applicable,  31. 
mining  law  status  of  the  different  states  and  territories,  31-47. 
state  school  land  grants,  64-71. 
when  title  passes  in  state  land  grants,  68-71. 

STATUTE  OF  FRAUDS, 
see  Frauds,  Statute  of. 

STATUTE  OF  LIMITATIONS. 

see  Limitation  of  Actions. 

STATUTES, 

construction  of  mining  statutes,  29,  30. 

construction  of  federal  Revised  Statutes,  20,  21. 

Revised  Statutes  of  the  United  States  and  subsequent  acts  of  Congress, 

539-564. 

Philippine  mining  laws,  641-663. 
Texas  mining  laws,  664-675. 

STONE   LANDS, 

see  Timber  and  Stone  Lands. 

STOPING, 

definitions,  104. 

STREETS, 

wrongful  removal  of  ore  under,  516. 

STRIKE, 

see  Subsurface  Rights, 
definitions,  140. 

STULLS, 

definitions,  105, 


756  INDEX. 

[The  figures  refer  to  pages.] 
SUBJACENT  SUPPORT, 

effect  of  severance  of  title  as  between  surface  and  subsurface  rights,  502- 
508. 

SUBSURFACE  RIGHTS, 

see  Apex;    Judicial  Apex;    Theoretical  Apex. 

in  general,  403-461. 

effect  of  patent,  397. 

question  for  jury,  404. 

presumptions,  404-409. 

dependent  on  vein  apexing  in  mining  location,  409,  410. 

agricultural  grants,  veins  apexing"  in,  409. 

patented  townsites,  veins  apexing  in,  409. 

placer  claims,  veins  apexing  in,  409. 

mill  sites,  veins  apexiug  in,  409. 

dependent  on  identity,  continuity,  and  dip  of  vein,  410-414. 

identity  and  continuity  of  vein,  413. 

dipping  of  vein  as  affecting,  414. 

cross  cuts  not  allowed,  415. 

divergence  of  end  lines  on  dip,  415-417,  420-422. 

convergence  of  end  lines  on  dip,  415-417,  420-422. 

method  of  exercise  of,  415. 

parallelism  of  end  lines,  415-422. 

under  act  of  1806,  415-417. 

under  act  of  1872,  417-452. 

veins  crossing  side  lines  as  end  lines,  422-425. 

veins  crossing  one  end  line  and  one  side  line,  426. 

veins  crossing  only  one  end  line  and  no  other  line,  427,  428. 

veins  not  reaching  boundary  line,  428,  429. 

veins  going  out  of  opposite  boundary  lines  and  returning  through  still  an- 
other, 429-432. 

veins  entering  and  departing  through  only  one  boundary  line,  433. 

veins  covered  by  conflicting  surface  locations,  434-436. 

veins  bisected  on  strike  by  common  side  line  of  adjoining  locations,  437, 
438. 

veins  splitting  on  strike,  439. 

veins  secondary  or  incidental,  440-449. 

veins  dipping  under  prior  patented  mining  land,  449. 

veins  dipping  under  prior  agricultural  grant,  450. 

theoretical  apex,  450,  451. 

rights  of  grantor  and  grantee  of  part  of  located  apex,  451,  452. 

conveyance  of  part  of  location,  451,  452. 

cross  veins,  453-455. 

crossing  of  extralateral  rights  on  dip  of  same  vein,  456. 

veins  uniting  on  dip  and  on  strike,  457. 

compromise  agreements,  383,  458. 

conveyance,  458,  497-502. 

subjacent  support,  severance  of  title  between  surface  and  subsurface  rights, 
502-508. 

federal  statutory  provisions,  540. 

SUMP, 

definitions,  104. 


INDEX.  757 

[The  figures  refer  to  pages.] 
SUPPLIES. 

furnishing  of,  under  grub  stake  contract,  481-483. 
SUPPORT, 

see  Lateral  Support;  Subjacent  Support. 

SURVEYOR  GENERAL, 

general  statement  of  duties,  49. 
return  of,  56,  57. 

SURVEYS, 

see  Lode  Claims, 
public  land  surveys,  54-57. 
as  conditions  precedent  to  patent,  345-349. 
of  placer  claims,  301,  362. 
on  conveyance  of  unpatented  claims,  511. 
of  mines  and  mining  claims  under  order  of  court,  519,  520. 
conformity  of  placer  claims  to,  252-254. 

federal  statutory  provisions,  543,  544. 
land  office  regulations,  581,  582,  585-592. 


TAILINGS, 

see  Dumps. 

definitions,  107   note,  110. 
use  of  mill  sites,  227,  238,  533,  note, 
dumping  grounds  under  tunnel  site  locations,  238. 
pollution  of  water,  532-534. 

TAXATION, 

taxes  as  lien  on  mining  claim,  509. 

TENANCY  IN  COMMON, 

see  Co-owners, 
of  mining  property,  493-496. 
accounting  between  co-tenants,  494,  495. 
does  not  exist  between  surface  and  subsurface  owners,  496. 
fiduciary  relationship  of  co-tenants,  496. 

TENNESSEE, 

mineral  lands  and  mining  operations,  exception  from  operation  of  federal 
laws  and  present  state  of  legislation  relating  to,  45. 

TERRITORIES, 

enumeration  of  territories  to  which  American  mining  law  is  applicable,  31. 

TEXAS, 

exception  from  operation  of  federal  legislation  relating  to  mining,  45. 
mining  laws  of,  GG4-G75. 

THEORETICAL  APEX, 

definitions,  4.10,  451. 

nrface  rights.  450,  451. 

THREATS. 

;is  excuse  for  failure  to  perform  discovery  work,  1CL 
as  excuse  for  failure  to  perform  annual  labor,  284. 


758  INDEX. 

[The  figures  refer  to  pages.] 
TIDE  LANDS, 

mining  rights  in,  148,  note. 

TIMBER, 

definitions,  104. 

use  for  mining  and  domestic  purposes,  federal  statutes  relating  to,  548,  549. 

TIMBER  AND  STONE  LAND, 

timber  and  stone  entries  in  general,  87,  88. 

location  of  building  stone  lands  as  placer  claims,  246. 

entry,  467-409. 

federal  statutes,  548,  552. 
forest  reservations,  federal  statutes,  554,  555. 

land  office  regulations,  585. 
act  of  Congress  of  June  3,  1878,  for  disposal  of  land  in  certain  states,  548, 

615. 
act  of  Congress  of  August  4,  1892,  making  act  of  June  3,  1878,  applicable  to 

all  public  land  states,  552,  615. 
land  office  regulations,  615-617. 

TIME, 

of  passage  of  title  to  state  land  grants,  68-71. 

for  completion  of  discovery  work  of  lode  claims,  183,  184, 

for  marking  boundaries  of  lode  claims,  191,  192. 

for  posting  notice  of  location  of  lode  claim,  210. 

for  record  of  lode  location  papers,  218. 

for  giving  notice  of  tunnel  site  location,  232. 

for  completion  of  discovery  work  of  placers,  248. 

for  marking  location  of  placer  claims,  257-258. 

for  filing  affidavit  as  to  performance  of  annual  labor,  285. 

for  resumption  of  work  on  claim,  290,  291,  318-320. 

for  performance  of  acts  of  relocation,  315. 

for  publication  of  notice  of  application  for  patent,  356. 

for  filing  adverse  claim,  356,  357,  366,  367. 

for  commencement  of  adverse  proceedings,  376,  377. 

for  entry  of  coal  land  under  preference  right,  465,  466. 

as  essence  of  option  to  purchase  mining  property,  487. 

as  essence  of  mine  working  contract,  488,  note. 

of  taking  effect  of  patent  as  affecting  water  rights,  527,  528. 

TITLE, 

see  Adverse  Possession;  After-Acquired  Title;  Conveyances, 
when  title  to  school  land  grants  passes  to  state,  68. 
effect  of  patent,  395-398. 

application  of  doctrine  of  relation  on  granting  patent,  401,  402. 
oil  and  gas,  time  of  vesting,  474-476. 
examination  of,  on  conveyance  of  mining  claim,  510,  511. 

TITLE  BONDS, 

coupled  with  mining  leases,  487,  488. 

TOP, 

see  Apex, 
definitions,  104,  137-140. 


INDEX.  759 

[The  figures  refer  to  pages.] 

TOWN  srn;s, 

:,«-:ition. 

relation  to  mineral  lands,  95-102. 
lands  subject  to  entry,  90. 
effect  of  actual  occupancy,  97,  98. 
relation  of  act  of  1891  to  earlier  acts,  98-100. 
known  veins,  101,  102. 

exception  of  mill  sites  from  town-site  patent,  231. 
entries,  federal  statutes,  551,  552. 

TRANSFERS, 

see  Conveyances. 

TREATMENT, 

definitions,  107. 

TRESPASS, 

see  Damages. 

for  wrongful  taking  of  ore.  513-516. 

initiation  of  mining  location  on  homestead  entry,  85,  88. 
in  making  location,  156,  157,  164. 
in  making  relocation,  317-327. 

TRIAL, 

in  adverse  proceedings,  380-382. 

TROVER, 

for  wrongful  removal  of  mineral,  516,  517. 

TRUSTEES, 

application  for  patent  by,  353. 

patentees  as  trustees  for  others,  54,  400,  401. 

TUNNEL, 

definitions,  103. 

annual  labor,  244. 

federal  statutory  provisions,  548. 

TUNNEL  SITES, 

see  Abandonment;    Adverse  Claims  and  Proceedings;    Location, 
federal  statutory  provisions,  540. 
land  office  regulations,  567,  568. 

u 

UINTA  INDIAN  LANDS, 

mineral  rights,  federal  statutes,  558. 

UNCANCELED  APPLICATION  FOR  PATENT, 

see  Patents. 

UNCOMPAHGRE  INDIAN  LANDS, 

mining  claims  on,  federal  statutes,  559,  560. 

UNDERGROUND  DISCOVERY. 
validity  of,  149,  note, 
of  blind  veins,  239-242. 

UNDERHAND  STOPING, 
definitions,  104. 


760  INDEX. 

[The  figures  refer  to  pages.] 
UNION  OF  VEINS, 
on  the  dip,  457. 
on  the  strike,  457. 

UNITED  STATES, 

sovereignty  over  mining  property,  9-14. 

territory  and  lands  subject  to  federal  regulation,  32-34. 

federal  statutory  provisions,  539-564. 
UP  CAST, 

definitions,  104. 
UTAH, 

application  and  operation  of  federal  legislation  relatiug  to  mines  and  min- 
erals, 45. 

adjudication  of  Mexican  land  grants  in,  61-63. 

UTE  INDIAN  LANDS, 

mineral  lands,  federal  statutes,  558. 


VALUABLE  MINERAL  DEPOSITS, 
definitions,  111-121 

VEINS. 

see  Lode;    Lode  Claims;    Subsurface  Rights, 
definitions,  105,  117,  122-135. 
known  veins,  definition,  260-264. 

VENDOR  AND  VENDEE, 

relocation  by  vendor,  334,  335. 

VERDICT, 

in  adverse  proceedings,  380-382. 

VERIFICATION, 

see  Affidavits. 

of  location  certificate  of  lode  claim,  216,  217,  note. 
of  location  certificate  of  placer  claim,  260. 
of  application  for  patent,  351,  353. 
of  adverse  claim,  367,  368. 
of  affidavits  on  application  for  patent,  federal  statutory  provisions,  545. 

VERMONT, 

mineral  lands  and  mining  operations,  exception  from  operation  of  federal 
laws  and  present  state  of  legislation  relating  to,  46. 

VERTICAL  SUPPORT, 

see  Subjacent  Support. 

VIEW, 

by  jury  under'  order  of  court,  520. 

VIRGINIA, 

mineral  lands  and  mining  operations,  exception  from  operation  of  federal 
laws  and  present  state  of  legislation  relating  to,  46. 

VUG, 

definitions,  107. 


INDEX.  7G1 

[The  figures  refer  to  pages.] 

WAIT 

of  forfeiture  of  rights  of  co-owuer  failing  to  contribute,  -98. 
of  adverse  claim,  369. 

WARRANTY  DEEDS, 
see  Conveyances. 

WASHINGTON, 

mineral  lands  and  mining  operations,  application  and  operation- of  federal 
and  state  legislation  relating  to,  46. 

WASTE. 

by  co-tenant,  494. 

of  oil  and  gas,  471,  note. 

WATER  RIGHTS, 

in  general,  526-535. 
reservoirs,  sites,  94. 

duties  and   labilities  of  owners,  534,  535. 
appropriation,  526-530. 
California  system,  527,  528. 
Colorado  system  528. 
debris,  531-534. 
pollution,  531-534. 
drainage,  534,  535. 
federal  statutory  provisions.  546. 

reservation  of  rights  of  way  for  ditches  or  canals  in  patents,  federal  stat- 
utes relating  to,  551. 

WEST  VIRGINIA, 

mineral  lands  and  mining  operations,  exception  from  operation  of  federal 
laws  and  present  state  of  legislation  relating  to,  46 

WHITE  RIVER  UTE  INDIAN  LANDS, 

act  of  Congress,  558. 

WICHITA  LANDS, 

act  of  Congress,  553. 

WIND  RIVER  INDIAN  LANDS. 

mining  rights,  federal  statutes,  561,  562. 

WINZE, 

definitions,  104. 

WISCONSIN, 

mineral  lands  and  mining  operations,  application  and  operation  of  federal 
and  state  legislation  relating  to,  46,  547. 

WORDS  AND  PHRASES. 

"abandonment."  300-30-"). 
"adit".  103,  104,  182,  183. 
"adverse  claim."  366. 
"amalgam,"  107. 
"American  mining  law,"  1. 
"ai>t>x,"  103,  137-140. 


TG2  INDEX. 

[The  figures  refer  to  pages.] 
WORDS  AND  PHRASES— Continued, 

"appropriation  of  water,"  529,  note. 
"assay,"  108,  note,  489. 
"back,"  104. 
"bacii  stoping,"  104. 
"bar  diggings,"  108. 
"base  ores,"  107,  note, 
"bedded  deposits,"  125. 
"blanket  veins,"  414, 
"blind  veins,"  234. 
"blossom,"  105. 
"blow  out,"  105. 
"bonanza,"  107. 
"booming,"  110. 
"breast,"  104. 
"breccia,"  124,  note. 
"breccia ted  vein,':  106. 
"cap,"  106. 

"cbainber  deposits,"  125. 
"chimney,"  106,  107. 
"cnute,"  106,  107. 
"clean  up,"  107,  109. 
"concentrates,"  107,  note, 
"contact  deposits,"  125. 
"contact  veins,"  123. 
.  "contiguous,"  279,  note, 
"continuity,'    413. 
"country  rock,"  103,  125,  note, 
"course,"  140. 
"cradle,"  108. 
"crevice,"  182. 
"cribbing,"  104,  105. 
"cross  cut,"  103. 
"deep  placers,"  109,  note,  136. 
"diggings."  108. 
"dike,    123. 
"dip,"  105..  140,  141. 
"discovery,"  147-149. 
"disseminations,"  125. 
"down  cast,"  104. 
"dredging,"  110. 
"drift,"  104. 
"drift  mining,"  109. 
"dry  blowing,"  110. 
"dump,"  107. 
"extralateral  right,"  138. 
'Tace  of  tunnel,"  104,  232,  234. 
"Fahlband,"  124. 
"faulting,"  106. 
"feeder,"  106. 
"fissure  veins,"  122,  123. 
"float,"  105. 


INDEX.  763 

[The  figures  refer  to  pages.] 
WORDS  AND  PHRASES— Continued, 
"floats,"  60. 
"floor,"  104,  105. 
"foot  wall,"  105. 
"forfeitures,"  300-305. 
"free  milling  ores,"  107. 
"gangue,"  106. 

nigue  minerals,"  106,  note, 
"gouge,"  100. 

"grub  stake  contracts,"  481. 
"banging  wall,"  105. 
"beading,"  104. 
"borse,"  106. 

"hydraulic  mining,"  108,  109 
"identity,"  413. 
"impregnations,"  123,  124. 
"improvement,"  275,  note, 
"incline  drift,"  104. 
"intralimital  rights,"  404. 
"judicial  apex,"  450,  451. 
"known  lodes,"  260-264. 
"known  mines,"  101. 
"known  veins,"  260-264. 
"lagging,"  105. 
"lateral  drifts,"  104. 
"ledge,"  117,  122-135. 
"levels,"  104. 
"lifts,"  104. 

"line  of  tunnel,"  232-236. 
"location,"  142,  143,  175,  176. 
"lode,"  117,  li'2-135. 
"manhole,"  104. 
"mill  holes,"  104. 
"mill  run,"  108,  note, 
"mine,"  143-146. 
"mineral,"  111-121. 
"mineral  deposits,"  111-121. 
"mining  claim,"  142,  143. 
"mining  districts,"  24. 
"mining  partnerships,"  490. 
"nuggets,"  109. 
"open  cut,"  104. 
"ore,"  106,  note, 
"ore  channels,"  124,  125. 
"outcrop,"  105. 
"overhand  stoping,"  104. 
"panning,"  108. 
"patent,"  392. 

"paying  quantity,"  478,  note. 
"pay  streak,"  107. 
"peel is  possessio,"  156. 
"pinch,"  106. 


76  i  INDEX. 

[The  figures  refer  to  pages.] 
WORDS  AND  PHRASES— Continued, 

"placer,"  122,  135-137,  24.1. 

"placer  claim,"  122,  135-137. 

"pocket,"  106. 

'•preference  right,"  465,  note. 

'•prospecting,"  105. 

"prospecting  pan,"  108. 

"protest,"  366. 

"raise,"  104. 

"refractory  ores,"  107. 

"resumption  of  work,"  291,  292. 

"riffles,"  109. 

"rocker,"  108. 

"rock  in  place,"  132-135. 

"roof,"  104,  106. 

"sample  assay,"  108,  note. 

"selvage,"  106. 

"set  work,"  105. 

"shaft,"  103. 

"sluice  box,"  109,  note. 

"smelting,"  107,  note. 

"sole."  104. 

"sorting  ore,"  107. 

"space  of  intersection,"  453,  454. 

"spur,"  106. 

"stoping,"  104. 

"strike,"  140. 

"stulls,"  105. 

"sump,"  104. 

"surface,"  504,  note. 

"tailings,"  107,  note,  110. 

"theoretical  apex,"  450,  451. 

"timber,"  104. 

"top,"  104,  137-140. 

"treatment,"  107. 

"tunnel."  103. 

"underhand  stoping,"  104. 

"up  cast,"  104. 

"valuable  mineral  deposits,"  111-121. 

"vein,"  105,  117,  122-135. 

"vug,"  107. 

"winze,"  104. 

WORKING  CONTRACTS, 

in  general,  488. 

WRITING. 

necessity  of  in  conveyance,  497-499. 

WYOMING, 

mineral  lands  and  mining  operations,  application  and  operation  of  federal 

laws  and  present  state- of  legislation  relating  to,  47. 
adjudication  of  Mexican  land  grants  in,  61-63. 


IMU-:X.  TG5 

[The  figures  refer  to  pages.] 


Y 

YAKIMA  INDIAN  LANDS, 

mineral  rights,  federal  statutes,  561. 

YELLOWSTONE  PARK, 
mineral  lands  in,  92. 

YOSEMITE  PARK, 

mineral  lands  in,  92. 


WEST  PUBLISHING  CO.,  PRINTERS,  ST.  PAUL,  MINN. 


(Cfye  i)ornbook  Scries 

Comprises  elementary  treatises  on  all  the  principal  sub- 
jects of  the  law.  The  books  are  made  on  the  same  gen- 
eral plan,  in  which  certain  special  and  original  feature  s 
are  made  prominent. 


"Hornbook  plan" 

Is  to  set  forth  the  leading  principles  in  black-letter  (like 
this) 

And  to  give  the  necessary  amplification,  explanation,  ap- 
plication, etc.,  under  the  principles,  in  type  like  this.  The 
authorities  are  grouped  in  footnotes  at  the  bottom  of  the 
page.* 

This  shows  why  these  books  are  found  so  serviceable  as 
practitioners'  handbooks.  A  lawyer  may  want  to  be  re- 
minded of  the  law  ;  in  that  case  he  wants  it  presented  in 
such  a  way  that  he  can  pick  out  what  he  needs  with  the 
least  trouble. 

*The  Hornbook  Series  now  includes  treatises  on  Agency,  Admi- 
ralty. Bailments.  Bills  and  Notes,  Common-Law  Pleading,  Constitu- 
tional Law,  Contracts,  Corporations,  Criminal  Law.  Criminal  Pro- 
cedure, Damages,  Elementary  Law,  Equity  Jurisprudence.  Equity 
Pleading,  Evidence.  Executors  and  Administrators.  Federal  Juris- 
diction and  Procedure,  Insurance,  International  Law,  Interpreta- 
tion of  Laws.  Mining  Law.  Negligence.  Partnership,  Persons  and 
Domestic  Relations.  Public  Corporations,  Real  Property,  .Sales, 
Torts  (2  vols.)  and  Wills. 


Uniform  price,  $3.75  a  volume,  delivered. 
Bound  in  American  Law  Buckram. 


West  Publishing  Co. 

St.  Paul,  Minn. 

100  William  St.  225  Dearborn  St. 
New  York.  Chicago. 


23arrotDs  on  negligence, 

1899.     G34  pages.     $3.75  delivered. 
By  MORTON  BARROWS,  A.  B.,  LL.  B. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definition  and  Essential  Elements. 

2.  Contributory  Negligence. 

3.  Liability  of  Master  to  Servant. 

4.  Liability  of  Master  to  Third  Persons. 

5.  Common  Carriers  of  Passengers. 
G.  Carriers  of  Goods. 

7.  Occupation  and  Use  of  Land  and  Water. 

8.  Dangerous  Instrumentalities. 

9.  Negligence  of  Attorneys,  Physicians,  and  Public  Officers. 

10.  Death  by  Wrongful  Act. 

11.  Negligence  of  Municipal  Corporations. 


C635&-1 


Black  on  Construction  anb 
3nterprctation  of  CCUPS. 

1911.     624  pages.     $3.75  delivered. 

By  H.  CAMPBELL  BLACK, 

Author  of  Black's  Law  Dictionary,  and  Treatises  on  Constitution- 
al Law,  Judgments,  etc. 

Second  Edition. 


TABLE    OF    CONTENTS. 

Cliap. 

1.  Nature  and  Office  of  Interpretation. 

2.  Construction  of  Constitutions. 

3.  General  Principles  of  Statutory  Construction. 

4.  Presumptions  in  Aid  of  Construction,  and  Consideration  of  Ef- 

fects and  Consequences  of  Act. 

5.  Literal  and  Grammatical  Construction.  Meaning  of  Language, 

and  Interpretation  of  Words  and  Phrases. 

6.  Intrinsic  Aids  in  Statutory  Construction. 

7.  Extrinsic  Aids  in  Statutory  Construction. 

8.  Construction  of  Statute  as  a  Whole  and  with  Reference  to  Ex- 

isting Laws. 

9.  Interpretation  with  Reference  to  Common  Law. 

10.  Retrospective  Interpretation. 

11.  Construction  of  Provisos,  Exceptions,  and  Saving  Clauses. 

12.  Strict  and  Liberal  Construction. 

13.  Mandatory  and  Directory  Statutes  and  Provisions. 

14.  Amendatory  and  Amended  Acts. 

15.  Construction  of  Codes  and  Revised  Statutes. 

16.  Adopted  and  Re-enacted  Statutes. 

17.  Declaratory  Statutes. 

18.  The  Rule  of  Stare  Decisis  as  Applied  to  Statutory  Construc- 

tion. 


C6559a-2 


's  Constitutional  Cam 

1910.     80S  pages.     $3.75  delivered. 

By  H.  CAMPBELL  BLACK, 

Author  of  Black's  Law  Dictionary,  Treatises  on  Judgments, 
Tax  Titles,  Bankruptcy,  etc. 

Third  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definitions  and  General  Principles. 

2.  The  United  States  and  the  States. 

3.  Establishment  and  Amendment  of  Constitutions. 

4.  Construction  and  Interpretation  of  Constitutions. 

5.  The  Three  Departments  of  Government. 
G.  The  Federal  Executive. 

7.  Federal  Jurisdiction. 

8.  The  Powers  of  Congress. 

9.  Interstate  Law  as  Determined  by  the  Constitution. 

10.  The  Establishment  of  Republican  Government. 

11.  Executive  Power  in  the  States. 

12.  Judicial  Powers  in  the  States. 

13.  Legislative  Power  in  the  States. 

14.  The  Police  Power. 

15.  The  Power  cf  Taxation. 

16.  The  Right  of  Eminent  Domain. 

17.  Municipal  Corporations. 

18.  Civil  Rights,  and  Their  Protection  by  the  Constitution. 

19.  Political  and  PuMic  Rights. 

20.  Constitutional  Guaranties  in  Criminal  Cases. 

21.  Laws  Impairing  the  Obligation  of  Contracts. 

22.  Retroactive  Laws. 


CG559a-v 


Cfytlbs  on  Suretyship  cmb 
(Buarantu,. 

1907.     572  pages.     .S.°,.7.~  delivered. 

By  FRANK  HALL  CHILDS, 

of  the   Chicago   Bar. 


TABLE    OF   CONTENTS. 

Chap. 

1.  Definitions,  Parties,  Distinctions,  and  Classifications. 

2.  Formation  of  the  Contract. 

3.  The  Statute  of  Frauds. 

4.  Construction  of  the  Contract. 

5.  Rights  and  Liabilities  as  Between  the  Creditor  and  the  Sure- 

ty. 

G.  Rights  and  Liabilities  of  the  Surety  and  of  the  Principal  as  to 
each  other. 

7.  Rights  and  Liabilities  of  Co-Sureties  as  to  each  other. 

8.  Parties  to  Negotiable  Instruments  Occupying  the  Relation  of 

Sureties. 

9.  Official  Bonds. 

10.  Judicial  Bonds. 

11.  Bail  Bonds  and  Recognizances. 


CG359-4 


Clark  on  Contracts. 

1904.     693  pages.     $3.75  delivered. 

By  WM.  L.  CLARK,  Jr. 
Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE    OF   CONTENTS. 


Chap. 

1.  Contract  in  General. 

2.  Offer  and  Acceptance. 

3.  Classification  of  Contracts. 

4.  Requirement  of  Writing. 

5.  Consideration. 

6.  Capacity  of  Parties. 

7.  Reality  of  Consent. 

8.  Legality  of  Object. 

9.  Operation  of  Contract. 

10.  Interpretation  of  Contract. 

11.  Discharge  of  Contract. 

12.  Agency. 

13.  Quasi  Contract. 


C6559-5 


Clark  on  Corporations. 

1907.     721  pages.     S3.7D  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  "Criminal  Law,"  "Criminal  Procedure,"  and  "Contracts." 

Second  Edition:  By  FRANCIS  B.  TIFFANY. 


TABLE    OF   CONTENTS. 

Chap. 

1.  Of  the  Nature  of  a  Corporation. 

2.  Creation  and  Citizenship  of  Corporations. 

3.  Effect  of  Irregular  Incorporation. 

4.  Relation  between  Corporation  and  its  Promoters. 

5.  Powers  and  Liabilities  of  Corporations. 

6.  Powers  and  Liabilities  of  Corporations. 

7.  Powers  and  Liabilities  of  Corporations. 

8.  The  Corporation  and  the  State. 

9.  Dissolution  of  Corporations. 

10.  Membership  in  Corporations. 

11.  Membership  in  Corporations. 

12.  Membership  in  Corporations. 

13.  Management  of  Corporations — Officers  and  Agents. 

14.  Rights  and  Remedies  of  Creditors. 

15.  Foreign  Corporations. 
Appendix. 


C6559-G 


Clark's  Criminal  Cam. 

1002.     517  pages.     $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  the  Law  of  Contracts." 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TACLE   OF   CONTENTS, 

Chap. 

1.  Definition  of  Crime. 

2.  Criminal  Law. 

3.  Classification  of  Crimes. 

4.  The  Mental  Element  in  Crime. 

5.  Persons  Capable  of  Committing  Crime. 

6.  Parties  Concerned. 

7.  The  Overt  Act. 

8.  Offenses  against  the  Person. 

9.  Offenses  against  the  Person. 

10.  Offenses  against  the  Habitation. 

11.  Offenses  against  Property. 

12.  Offenses  against  the  Public  Health,  Morals,  etc. 

13.  Offenses  against  Public  Justice  and  Authority. 

14.  Offenses  against  the  Public  Peace. 

15.  Offenses  against  the  Government. 

16.  Offenses  against  the  Law  of  Nations. 

17.  Jurisdiction. 

18.  Former  Jeopardy. 


C6559-7 


H 

Clark's  Criminal  Procedure. 

1895.     665  pages.     $3.75  delivered. 
By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  Criminal  Law,"  and  a  "Handbook  of 

Contracts." 


TABLE    OF    CONTENTS. 
Chap. 

1.  Jurisdiction. 

2.  Apprehension  of  Persons  and  Property. 

3.  Preliminary  Examination,  Bail,  and  Commitment. 

4.  Mode  of  Accusation. 

5.  Pleading— The  Accusation. 

6.  Pleading — The  Accusation.    . 

7.  Pleading — The  Accusation. 

8.  Pleading— The  Accusation. 

9.  Pleading — The  Accusation. 

10.  Pleading  and  Proof. 

11.  Motion  to  Qua^h. 

12.  Trial  and  Verdict. 

13.  Proceedings  after  Verdict. 

14.  Evidence. 

15.  Habeas  Corpus. 


C655D-8 


(£rostr>ell  on  (fxecutors  anb 
dbmimstrators. 

1897.     COG  pages.     $3.75  delivered. 
By  SIMON  GREENLEAF  CROSWELL, 

Author  of  "Electricity,"  "Patent  Cases,"  etc. 


TABLE    OF    CONTENTS. 

Chap. 

Part  1.— DEFINITIONS  AND  DIVISION  OF  SUBJECT. 

1.  Definitions  and  Division  of  subject. 

Part  2.— APPOINTMENT  AND  QUALIFICATIONS. 

2.  Appointment  in  Court. 

3.  Place  and  Time  of  Appointment  and  Requisites  Therefor. 

4.  Who  may  Claim  Appointment  as  Executor. 

5.  Who  may  Claim  the  Right  to  Administer. 

6.  Disqualifications  for  the  Office  of  Executor  or  Administrator. 

7.  Acceptance  or  Renunciation. 

8.  Proceedings  for  Appointment  of  Executors  and  Administra- 

tors, 

9.  Special  Kinds  of  Administrations. 

10.  Foreign  and  Interstate  Administration. 

11.  Joint  Executors  and  Administrators. 

12.  Administration  Bonds. 

Part  3.— POWERS  AND  DUTIES. 

13.  Inventory — Appraisement — Notice  of  Appointment. 

14.  Assets  of  the  Estate. 

15.  Management  of  the  Estate. 

16.  Sales  and  Conveyances  of  Personal  or  Real  Assets. 

17.  Payment  of  Debts  arid  Allowances — Insolvent  Estates. 

18.  Payment  of  Legacies. 

19.  Distribution  of  Intestate  Estates. 

20.  Administration  Accounts. 

Part  4.— TERMINATION  OF  OFFICE. 

21.  Revocation  of  Letters — Removal — Resignation. 

Part  5.— REMEDIES. 

22.  Actions  by  Executors  and  Administrators. 

23.  Actions  against  Executors  and  Administrators. 

24.  Statute  of  Limitations— Set-off. 

25.  Evidence  and  Costs. 


CG559-9 


Costtgcm  on  Ztltmng  £air> 

1008.     7G5  pages.     $3.75  delivered. 

By  GEORGE  P.  COSTIGAN,  Jr. 

Dean  of  the  College  of  Law  of  the  University  of  Nebraska. 


TABLE    OF    CONTENTS. 

Chap. 

1.  The  Origin  and  History  of  American  Mining  Law. 

2.  The  Mining  Law  Status  of  the  States,  Territories,  and  Posses- 

sions of  the  United  States. 

3.  The  Land  Department  and  the  Public  Surveys. 

4.  The  Relation  Between   Mineral  Lands  and  the  Public  Land 

Grants. 

5.  The  Relation  Between  Mineral  Lands  and  Homestead,  Timber 

and  Desert  Entries. 

G.  The  Relation  Between  Mineral  Lands  and  the  Various  Public 
Land  Reservations. 

7.  The  Relation  Between  Mineral  Lands  and  Townsites. 

8.  Definitions  of  Practical  Mining  Terms. 

9.  Definitions  of  Mining  Law  Terms. 

10.  The  Discovery  of  Lode  and  Placer  Claims. 

11.  Who  May  and  Who  May  not  Locate  Mining  Claims. 

12.  The  Location  of  Lode  Claims. 

13.  The  Location  of  Mill  Sites. 

14.  The  Location  of  Tunnel  Sites  and  of  Blind  Lodes  Cut  by  Tun- 

nels. 

15.  The  Location  of  Placers  and  of  Lodes  within  Placers. 

16.  The  Annual  Labor  or  Improvements  Requirements. 

17.  The  Abandonment,    Forfeiture,   and   Relocation  of  Lode  and 

Placer  Mining  Claims. 

18.  Uncontested  Application  to  Patent  Mining  Claims. 

19.  Adverse  Proceedings  and  Protests  Against  Patent  Applications. 

20.  Patents. 

21.  Subsurface  Rights. 

22.  Coal  Land  and  Timber  and  Stone  Laud  Entries  and  Patents. 

23.  Oil  and  Gas  Leases. 

24.  Other  Mining  Contracts  and  Leases. 

25.  Mining  Partnerships  and  Tenancies  in  Common. 

26.  Conveyances  and  Liens. 

27.  Mining  Remedies. 

28.  Water  Rights  and  Drainage. 
Appendices. 


(£ aton  on  (Squthj. 

1901.     734  pages.     $3.75  delivered. 

By  JAMES  W.  EATON, 

Editor   3d   Edition    Collier    on    Bankruptcy.    Co-Editor   American 

Bankruptcy  Reports,  Eaton  and  Greene's  Negotiable 

Instruments  Law,  etc. 


TABLE    OF   CONTENTS. 

Origin  and  History. 

General  Principles  Governing  the  Exercise  of  Equity  Jurisdiction. 

Maxims. 

Penalties  and  Forfeitures. 

Priorities  and  Notice. 

Bona  Fide  Purchasers  Without  Notice. 

Equitable  Estoppel. 

Election. 

Satisfaction  and  Performance. 

Conversion  and  Reconversion. 

Accident. 

Mistake. 

Fraud. 

Equitable  Property. 

Implied  Trusts. 

Powers,  Duties,  and  Liabilities  of  Trustees. 

Mortgages. 

Equitable  Liens. 

Assignments. 

Remedies  Seeking  Pecuniary  Relief. 

Specific  Performance. 

Injunction. 

Partition,  Dower,  and  Establishment  of  Boundaries. 

Reformation,  Cancellation,  and  Cloud  on  Title. 

Ancillary  Remedies. 


CG559-10 


©arbiter  on  IPtlls. 

1903.     72G  pages.     $3.73  delivered. 

By  GEORGE  E.  GARDNER, 

Professor  in  the  Boston  University  Law  School. 


TABLE    OF   CONTENTS. 

Chap. 

1.  History  of  Wills— Introduction. 

2.  Form  of  Wills. 

3.  Nuncupative,  Holographic,  Conditional  Wills. 

4.  Agreements  to  Make  Wills,  and  Wills  Resulting  from  Agree- 

ment. 

5.  Who  may  be  a  Testator. 

6.  Restraint  upon  Power  of  Testamentary  Disposition— Who  may 

be  Beneficiaries — What  may  be  Disposed  of  by  Will. 

7.  Mistake,  Fraud,  and  Undue  Influence. 

8.  Execution  of  Wills. 

9.  Revocation  and  Republication  of  Wills. 

10.  Conflict  of  Laws. 

11.  Probate  of  Wills. 

12.  Actions  for  the  Construction  of  Wills. 

13.  Construction  of  Wills — Controlling  Principles. 

14.  Construction — Description  of  Subject-Matter. 

15.  Construction — Description  of  Beneficiary. 

16.  Construction — Nature  and  Duration  of  Interests. 

17.  Construction — Vested  and  Contingent  Interests — Remainders 

— Executory  Devises. 

18.  Construction — Conditions. 

19.  Construction — Testamentary  Trusts  and  Powers. 

20.  Legacies  —  General  —  Specific  —  Demonstrative  —  Cumulative 

— Lapsed  and  Void  —  Abatement  —  Ademptiou  —  Advance- 
ments. 

21.  Legacies  Charged  upon  Land  or  Other  Property. 

22.  Payment  of  the  Testator's  Debts. 

23.  Election. 

24.  Rights  of  Beneficiaries  Not  Previously  Discussed. 


C6359-12 


©ilmore  on  Partnership, 

1911.     About  775  pages.     $3.75  delivered. 

By  EUGENE  A.  GILMORE. 

Author  of  Gilmore's  Cases  on  Partnership 
(American  Casebook  Series). 


TABLE    OF   CONTENTS. 

Chap. 

1.  What  Constitutes  a  Partnership. 

2.  Formation  and  Classification  of  Partnerships. 

3.  The  Nature  and  Characteristics  of  a  Partnership. 

4.  Nature,  Extent,  and  Duration  of  Partnership  Liability. 

5.  Powers  of  Partners. 

G.  Rights  and  Duties  of  Partners  Inter  se. 

7.  Remedies  of  Creditors. 

8.  Actions  Between  Partners. 

9.  Actions  Between  Partners  and  Third  Persons. 

10.  Termination  of  the  Partnership. 

11.  Limited  Partnerships. 


C6559a-13 


I)ale  on  Bailments  anb 
Carriers. 

1896.  675  pages.     $3.75  delivered. 
By  WM.  B.  HALE. 


TABLE   OF   CONTENTS. 

Chap. 

1.  In  General. 

2.  Bailments  for  Sole  Benefit  of  Bailor. 

3.  Bailments  for  Bailee's  Sole  Benefit. 

4.  Bailments  for  Mutual  Benefit— Pledges, 

5.  Bailments  for  Mutual  Benefit— Hiring. 

6.  Innkeepers. 

7.  Carriers  of  Goods. 

8.  Carriers  of  Passengers. 

9.  Actions  against  Carriers. 


CG55Q-15 


Bale  on  damages. 

1896.    476  pages.     $3.75  delivered. 

By  WM.  B.  HALE, 

Author  of  "Bailments  and  Carriers/ 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definitions  and  General  Principles. 

2.  Nominal  Damages. 

3.  Compensatory  Damages. 

4.  Bonds,  Liquidated  Damages  and  Alternative  Contracts^ 

5.  Interest. 

6.  Value. 

7.  Exemplary  Damages. 

8.  Pleading  and  Practice. 

9.  Breach  of  Contracts  for  Sale  of  Goods. 

10.  Damages  in  Actions  against  Carrier. 

11.  Damages  in  Actions  against  Telegraph   Companies. 

12.  Damages  for  Death  by  Wrongful  Act. 

13.  Wrongs  Affecting  Real  Property. 

14.  Breach  of  Marriage  Promise. 


C6559-16 


cm  (Torts. 

1S9G.     G36  pages.     $3.75  delivered. 

By  WM.  B.  HALE. 

Author  of  "Bailments  and  Carriers,"  etc. 


TABLE    OF    CONTENTS. 

Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies  for  Torts — Damages. 

6.  Wrongs  Affecting  Freedom  and  Safety  of  Person 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 


CG55SKL7 


on  2leal  Property. 

189G.     589  pages.     $3.75  delivered. 
By  EARL  P.  HOPKINS,  A.  B.  LL.  M. 


TABLE   OF   CONTENTS. 
Chap. 

1.  What  is  Real  Property. 

2.  Tenure  and  Seisin. 

3.  Estates  as  to  Quantity— Fee  Simple 

4.  Estates  as  to  Quantity — Estates  Tail. 

•    5.  Estates  as  to  Quantity — Conventional   Life   Estates. 

6.  Estates  as  to  Quantity — Legal  Life  Estates. 

7.  Estates  as  to  Quantity — Less   than    Freehold. 

8.  Estates  as  to  Quality  on  Condition — on  Limitation. 

9.  Estates  as  to  Quality — Mortgages. 
10.  Equitable  Estates. 

31.  Estates  as  to  Time  of  Enjoyment — Future  Estates. 

12.  Estates  as  to  Number  of  Owners — Joint  Estates. 

13.  Incorporeal  Hereditaments. 

14.  Legal  Capacity  to  Hold  and  Convey  Realty. 

15.  Restraints  on  Alienation. 

16.  Title. 


CG559-18 


on  Ctbmtralhj, 

1901.     504  pages.     $3.75  delivered. 
By  ROBERT  M.  HUGHES,  M.  A. 


TABLE    OF    CONTENTS. 

The  Origin  and  History  of  the  Admiralty,  and  its  Extent  in  the 
United  States. 

Admiralty  Jurisdiction  as  Governed  by  the  Subject-Matter. 

General  Average  and  Marine  Insurance. 

Bottomry  and  Kespoudentia  ;  and  Liens  for  Supplies,  Repairs,  and 
Other  Necessaries. 

Stevedores'  Contracts,  Canal  Tolls,  and  Towage  Contracts, 

Salvage. 

Contracts  of  Affreightment  and  Charter  Parties. 

Water  Carriage  as  Affected  by  the  Harter  Act  of  February  13,  1893. 

Admiralty  Jurisdiction  in  Matters  of  Tort. 

The  Right  of  Action  in  Admiralty  for  Injuries  Resulting  Fatally. 

Torts  to  the  Property,  and  Herein  of  Collision. 

The  Steering  and  Sailing  Rules. 

Rules  as  to  Narrow  Channels,  Special  Circumstances,  and  General 
Precautions. 

Damages  in  Collision  Cases. 

Vessel  Ownership  Independent  of  the  Limited  Liability  Act. 

Rights  and  Liabilities  of  Owners  as  Affected  by  the  Limited  Lia- 
bility Act. 

The  Relative  Priorities  of  Maritime  Claims. 

A  Summary  of  Pleading  and  Practice. 

APPENDIX. 

1.  The  Mariner's  Compass. 

2.  Statutes  Regulating  Navigation,  Including: 

(1).  The  International  Rules. 

(2)  The  Rules  for  Coast  and  Connecting  Inland  Waters. 

(3)  The  Dividing  Lines  between  the  High  Seas  and  Coast  Wa- 

ters. 

(4)  The  Lake  Rules. 

(5)  The  Mississippi  Valley  Rules. 

(0)  The  Act  of  March  3,  1891).  as  to  Obstructing  Channels. 

3.  The  Limited  Liability  Acts,  Including: 

(1)  The  Act  of  March  3,  1851,  as  Amended. 

(2)  The  Act  of  June  20,  1884. 

4.  Section.  941,  Rev.  St.,  as  Amended,  Regulating  Bonding  of  Ves- 

sels. 

5.  Statutes  Regulating  Evidence  in  the  Federal  Courts. 

6.  Suits  in  Forma  Pauperis. 

1.  The  Admiralty  Rules  of  Practice. 


CG559-19 


on  $eberal 
3urtsbiction  anb  Procedure. 

1904.    634  pages.    $3.75  delivered. 

By  ROBERT  M.  HUGHES,  of  the  Norfolk  Bar, 

Author  of  "Hughes  on  Admiralty,"  and  Lecturer  at  the  George 
Washington  University  Law  School. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Introduction — What  it  Comprehends. 

2.  The  District  Court — Its  Criminal  Jurisdiction  and  Practice. 

3.  Same — Continued. 

4.  The    District    Court — Criminal     Jurisdiction — Miscellaneous 

Jurisdiction. 

5.  The  District  Court — Bankruptcy. 
6-8.  Same — Continued. 

9.  The  District  Court — Miscellaneous  Jurisdiction. 
10.  The  Circuit  Court — Original  Jurisdiction. 
11-12.  Same — Continued. 

13.  The  Circuit  Court — Jurisdiction  by  Removal. 
14-15.  Same— Continued. 

16.  The  Circuit  Court — Jurisdiction  by  Removal — Original  Juris- 

diction of  the  Supreme  Court — Other  Minor  Courts  of  Orig- 
inal Jurisdiction. 

17.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 

diction— Courts  of  Law. 

18.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 

diction— Courts  of  Equity. 

19.  Same — Continued. 

20.  Appellate  Jurisdiction — The  Circuit  Court  of  Appeals. 

21.  Appellate  Jurisdiction— The  Supreme  Court. 

22.  Procedure  on  Error  and  Appeal. 

The  U.  S.  Supreme  Court  Rules  and  the  Rules  of  Practice  for  the 
Courts  of  Equity  of  -the  United  States  are  given  in  an  appendix. 


CG559-20 


3n$ersoll  on  Public 
Corporations. 

19(M.     738  pages.    $3.75  delivered. 

By  HENRY  H.  INGERSOLL,  LL.  D., 

Dean  of  the  University  of  Tennessee  School  of  Law. 


TABLE    OF    CONTENTS. 

Part  1.— QUASI  CORPORATIONS. 
Chap. 

1.  Nature,  Creation,  Classification. 

2.  Quasi  Corporations — Liabilities,  Elements,  Counties,  Property, 

etc. 

3.  Same — Continued. 

4.  Same — Continued. 

Part  2.— MUNICIPAL  CORPORATIONS. 

5.  Municipal  'Corporations. 

6.  Their  Creation — How — By  What  Bodies — Subject  to  What  Re- 

strictions, etc. 

7.  Their  Alteration  and  Dissolution. 

8.  The  Charter. 

9.  Legislative  Control. 

10.  Proceedings  and  Ordinances. 

11.  Officers,  Agents,  and  Employes. 

12.  Contracts, 

13.  Improvements. 

14.  Police  Powers  and  Regulations. 

15.  Streets,  Sewers,  Parks,  and  Public  Buildings. 

16.  Torts. 

17.  Debts,  Funds,  Expenses,  and  Administration. 

18.  Taxation. 

19.  Actions. 

Part  3.— QUASI  PUBLIC  CORPORATIONS. 

20.  Quasi  Public  Corporations. 

21.  Railroads. 

22.  Electric  Companies. 

23.  Water  and  Gas  Companies. 

24.  Other  Quasi  Public  Corporations. 


C6559-21 


on  (Corts. 


1895.    2  vols.    1307  pages.    $7.50  delivered. 

By  EDWIN  A.  JAGGARD,  A.  M.,  LL.  B., 

Professor  of  the  Law  of  Torts  in  Minnesota  University  Law  School. 


TABLE   OF   CONTENTS. 

Part  1.— IN  GENERAL, 
Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  the  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies. 

Part  2.— SPECIFIC  WRONGS. 

6.  Wrongs  Affecting  Safety  and  Freedom  of  Persons. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 

14.  Common  Carriers. 


C6559-22 


on  €r>tbence. 

1907.     540  pages.     $3.75  delivered. 

By  JOHN  JAY  McKELVEY,  A.  M.,  LL.  B., 

Author  of  "Common-Law  Pleading,"  etc. 

Second  Edition. 


TABLE   OF   CONTENTS. 
Chap. 

1.  Introductory. 

2.  Judicial  Notice. 

3.  Questions  of  Law  and  Questions  of  Fact. 

4.  Burden  of  Proof. 

5.  Presumptions. 

6.  Admissions. 

7.  Confessions. 

8.  Matters  Excluded  as  Unimportant,  or  as  Misleading,  though 

Logically  Relevant. 

9.  Character. 

10.  Opinion  Evidence. 

11.  Hearsay. 

12.  Witnesses. 

13.  Examination  of  Witnesses. 

14.  Writings. 

15.  Demurrers  to  Evidence. 


CG559-23 


Horton  on  Bills  cmb  Hotes. 

1900.     600  pages.     $3.75  delivered. 

By  PROF.  CHARLES  P.  NORTON. 
Third  Edition:    By  Francis  B.  Tiffany. 


TABLE    OF   CONTENTS, 

Chap. 

1.  Of  Negotiability  so  far  as  it  Relates  to  Bills  and  Notes. 

2.  Of  Negotiable  Bills  and  Notes,  and  their  Formal  and  Essen- 

tial Requisites. 

3.  Acceptance  of  Bills  of  Exchange. 

4.  Indorsement. 

5.  Of  the  Nature  of  the  Liabilities  of  the  Parties. 

6.  Transfer. 

7.  Defenses  as  against  Purchaser  for  Value  without  Notice. 

8.  The  Purchaser  for  Value  without  Notice. 

9.  Of  Presentment  and  Notice  of  Dishonor. 
10.  Checks. 

Appendix. 


C6559-24 


Sfyipmcm  on  (£oinmotv£air> 


1895.     G15  pages.  $3.75  delivered. 

By  BENJAMIN  J.  SHIPMAN,  LL.  B. 
Second  Edition. 


TABLE    OF    CONTENTS. 

Chap. 

1.  Forms  of  Action. 
2. -Forms  of  Action. 

3.  The  Parties  to  Actions. 

4.  The  Proceedings  in  an  Action. 

5.  The  Declaration. 

6.  The  Production  of  the  Issue. 

7.  Materialty  in  Pleading. 

8.  Singleness  or  Unity  in  Pleading. 
0.  Certainty  in  Pleading. 

10.  Consistency  and  Simplicity  in  Pleading. 

11.  Directness  and  Brevity  in  Pleading. 

12.  Miscellaneous  Rules. 
Appendix. 


C6559-25 


Sfyipmcm  on  (£qwhj 
Pleabing. 

1897.     644  pages.     $3.75  delivered. 

By  BENJ.  J.  SHIPMAN,  LL.  B., 

Author  of  "Shipman's  Common-Law   Pleading." 


TABLE    OF   CONTENTS. 

Chap. 

1.  Equity  Pleading  in  General. 

2.  Parties. 

3.  Proceedings  in  an  Equitable  suit. 

4.  Bills  in  Equity. 

5.  The  Disclaimer. 

6.  Demurrer. 

7.  The  Plea. 

8.  The  Answer. 

9.  The  Replication. 


CG559-2G 


Smiths  (fkmentarij  £aux 

1896.     367  pages.     $3.7-1  delivered. 

BY  WALTER  DENTON  SMITH, 

Instructor  in  the  Law  Department  of  the  University  of  Michigan. 


TABLE    OF   CONTENTS. 
Chap. 

Part  1.— ELEMENTARY  JURISPRUDENCE. 

1.  Nature  of  Law  and  the  Various  Systems. 

2.  Government  and  its  Functions. 

3.  Government  in  the  United  States. 

4.  The  Unwritten  Law. 

5.  Equity. 

6.  The  Written  Law. 

7.  The  Authorities  and  their  Interpretation. 

8.  Persons  and  Personal  Rights. 

9.  Property. 

10.  Classification  of  the  Law. 

Part  2.— THE  SUBSTANTIVE  LAW. 

11.  Constitutional  and  Administrative  Law. 

12.  Criminal  Law. 

13.  The  Law  of  Domestic  Relations. 

14.  Corporeal  and  Incorporeal  Hereditaments. 

15.  Estates  in  Real  Property. 

16.  Title  to  Real  Property. 

17.  Personal  Property. 

IS.  Succession  After  Death. 

19.  Contracts. 

20.  Special  Contracts. 

21.  Agency. 

22.  Commercial  Associations. 

23.  Torts. 

Part  3.— THE  ADJECTIVE  LAW. 

24.  Remedies. 

25.  Courts  and  their  Jurisdiction. 

26.  Procedure. 

27.  Trials. 


CG559-27 


(Eiffang  on  Clgcncy. 

1903.     609  pages.     $3.75  delivered. 

By  FRANCIS  B.  TIFFANY, 

Author  of  "Death  by  Wrongful  Act,"  "Law  of  Sales,"  etc. 


TABLE    OF   CONTENTS. 

Chap. 

Part  1.— IN  GENERAL. 

1.  Introductory — Definitions. 

2.  Creation  of  the  Relation  of  Principal  and  Agent — Appointment. 

3.  Same  (continued) — Ratification. 

4.  What  Acts  Can  be  Done  by  Agent— Illegality — Capacity  of 

Parties — Joint  Principals  and  Agents. 

5.  Delegation  by  Agent — Subagents. 

6.  Termination  of  the  Relation. 

7.  Construction  of  Authority. 

Part  2.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND   THIRD   PERSON. 

8.  Liability  of  Principal  to  Third  Person — Contract. 

9.  Same  (continued). 

10.  Admissions  by  Agent — Notice  to  Agent. 

11.  Liability  of  Principal  to  Third  Person — Torts  and  Crimes. 

12.  Liability  of  Third  Person  to  Principal. 

Part  3.— RIGHTS  AND  LIABILITIES  BETWEEN  AGENT  AND 
THIRD   PERSON. 

13.  Liability  of  Agent  to  Third  Person  (including  parties  to  con- 

tracts). 

14.  Liability  of  Third  Person  to  Agent. 

Part  4.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND  AGEJST. 

15.  Duties  of  Agent  to  Principal. 

16.  Duties  of  Principal  to  Agent. 

Appendix. 


C6559-28 


(Tiffany  on  Persons  cmb 
Domestic  delations. 

1909.     G56  pages.     $3.75  delivered. 

By  WALTER  C.  TIFFANY. 

Second  Edition :  Edited  by  Roger  W.  Cooley. 


TABLE    OF    CONTENTS. 
Chap. 

Part  1.— HUSBAND  AND  WIFE. 

1.  Marriage. 

2.  Persons  of  the  Spouses  as  Affected  by  Coverture. 

3.  Rights  in  Property  as  affected  by  Coverture. 

4.  Contracts,  Conveyances,  etc.,  and  Quasi-Contractual  Obliga- 

tions. 

5.  Wife's  Equitable  and  Statutory  Separate  Estate. 

6.  Antenuptial  and  Postnuptial  Settlements. 

7.  Separation  and  Divorce. 

Part  2.— PARENT  AND  CHILD. 

8.  Legitimacy,  Illegitimacy,  and  Adoption. 

9.  Duties  and  Liabilities  of  Parents. 

10.  Rights  of  Parents  and  of  Children. 

Part  3.— GUARDIAN  AND  WARD. 

11.  Guardians  Defined — Selection  and  Appointment. 

12.  Rights,  Duties,  and  Liabilities  of  Guardians. 

13.  Termination  of  Guardianship — Enforcing  Guardian's  Liability. 

part  4— INFANTS,   PERSONS    NON    COMPOTES    MENTIS, 
AND   ALIENS. 

14.  Infants. 

15.  Persons  Non  Compotes  Mentis  and  Aliens. 

Part   5.— MASTER  AND    SERVANT. 

1C.  Creation  and  Termination  of  Relation. 


(Ciffcmy  on  Sales. 

1908.    534  pages.     $3.75  delivered.' 
By  FRANCIS  B.  TIFFANY,  A.  B.,  LL.  B. 

Author  of  "Tiffany  on  Death  by  Wrongful  Act." 
Second  Edition. 


TABLE    OF   CONTENTS. 
Chap. 

1.  Formation  of  the  Contract. 

2.  Formation  of  the  Contract — Under  the  Statute  of  Frauds. 

3.  Effect  of  the  Contract  in  Passing  the  Property— Sale  of  Spe- 

cific Goods. 

4.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Goods 

not  Specific. 

5.  Fraud,  and  Retention  of  Possession. 

6.  Illegality. 

7.  Conditions  and  Warranties. 

8.  Performance. 

9.  Rights  of  Unpaid  Seller  against  the  Goods. 
10.  Action  for  Breach  of  the  Contract. 

Appendix:     Sales  Act — English  Sale  of  Goods  Act. 


CG539a-30 


Dance  on  3nsurance. 


r,x:: 

By  WILLIAM  REYNOLDS  VANCE, 
Professor  of  Law  in  the  George  Washington  University 


The  principal  object  of  this  treatise  is  to  give  a  consistent  state- 
ment of  logically  developed  principles  that  underlie  all  contracts  of 
insurance,  with  subsidiary  chapters  treating  of  the  rules  peculiar 
to  the  several  different  kinds  of  insurance.  Special  attention  has 
been  given  to  the  construction  of  the  standard  fire  policy. 

This  treatment  will  help  to  bring  about  we  believe,  the  much 
desired  clarification  of  this  branch  of  the  law. 

The  chapters  cover, — 
Historical  and  Introductory. 
Nature  and  Requisites  of  Contract 
Parties. 

Insurable  Interest. 
Making  the  Contract. 
The  Consideration. 

Consent  of  the  Parties — Concealment, 
Consent  of  the  Parties — Warranties. 
Agents  and  their  Powers. 
Waiver  and  Estoppel. 
The  Standard  Fire  Policy. 
Terms  of  the  Life  Policy. 
Marine  Insurance. 
Accident  Insurance. 

Guaranty,  Credit,  and  Liability  Insurance, 
Appendix. 


CGooO-31 


tPilson  on 
3nternattonal  £aux 

1910.     623  pages.     $3.75  delivered. 
By  GEORGE  GRAFTON  WILSON. 


TABLE    OF    CONTENTS. 

Chap. 

1.  Persons  in  International  Law. 

2.  Existence,  Independence  and  Equality. 

3.  Property  and  Domain. 

4.  Jurisdiction. 

5.  Diplomatic  Relations. 

6.  Consular  and  Other  Relations. 

7.  Treaties  and  Other  International  Agreements. 

8.  Amicable  Means  of  Settlement  of  International  Differences. 

9.  Non-Amicable  Measures  of  Redress  Short  of  War. 

10.  Nature  and  Commencement. 

11.  Area  and  General  Effect  of  Belligerent  Operations. 

12.  Rights  and  Obligations  During  War. 

13.  Persons  During  War. 

14.  Property  on  Land. 

15.  Property  on  Water. 
1G.  Maritime  Capture. 

17.  Rules  of  War. 

18.  Military  Occupation  and  Government. 

19.  Prisoners,  Disabled  and  Shipwrecked. 

20.  Non-Hostile  Relations  between  Belligerents. 

21.  Termination  of  War. 

22.  Nature  of  Neutrality. 

23.  Visit  and  Search. 

24.  Contraband. 

25.  Blockade. 

20.  Continuous  Voyage. 

27.  Unueutral  Service. 

28.  Prize. 


C0559-32 


ID  07524 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 


